.
Interview with THOMAS E.
BRENNAN (part 1)
Justice Brennan talks about his family history, his father and mother, and attending Catholic school.
Mr. Lane:
This is Roger Lane with former Justice Thomas E. Brennan of the
Supreme Court, and we're sitting in Justice Brennan's office. I am representing
the Michigan Supreme Court Historical Society, and this is another in a series
of tapes being made of former Justices recalling their years on the Court and
associated events. The date is January 3, 1991. Justice Brennan, I would like
to get this tape started by asking you to recall your earliest family
background. I would think that people might be interested in where you were
born including whether it was in your mother's bedroom or such and such a
hospital, what part of Detroit if it was there, what sort of family
circumstances were at the time. This would have been 1929 as I recall. The
depression was coming on, so why don't you just recall a little bit about that
earliest episode in your life?
Justice Brennan:
My name is Thomas Emmett Brennan. Emmett is spelled
E-m-m-e-t-t. It was my uncle's name, my mother's brother, Emmett Edgar
Sullivan.
Mr. Lane:
Sullivan?
Justice Brennan:
Sullivan, and his father was John Emmett Sullivan and John
Emmett Sullivan was a lawyer in Detroit in the late 1800's who died along about
1911. I never knew him, obviously. He was a graduate of the University of
Michigan law school. His father was a man named John Clifford Sullivan, and
John Clifford Sullivan was a cigar manufacturer in the City of Detroit during
the Civil War.
Mr. Lane:
Did you say "O'Sullivan" or "Sullivan"?
Justice Brennan:
Sullivan.
Mr. Lane:
Not Clifford O'Sullivan?
Justice Brennan:
Not Clifford O'Sullivan, John Clifford Sullivan, no connection
with Cliff O'Sullivan from Port Huron, but I guess I start with this because I
think it is through that branch of the family that they trace all the way back
the American Revolution and I am certifiably a member of the Sons of the
American Revolution.
Mr. Lane:
Do you have a certificate?
Justice Brennan:
No, but I have a certificate or something saying I am entitled
to join. On the other side, the Brennans were much more plebeian folk and
hadn't this kind of elitist background, if you will. I was the second son of
Joseph T. Brennan, Joseph Terrance Brennan and Jeanette Sullivan Brennan. They
were married in 1925. My older brother, Terry, Joseph T. Brennan, Jr. was born
in 1926, and I was born, as you say, in 1929 on May 27th. At the time, my
parents lived in a two bedroom bungalow on Elmira Street in Detroit on the west
side, and they lived there until about 1935. They lost that house in the
depression, an interesting story.
Mr. Lane:
Why don't you mention in brief how that happened?
Justice Brennan:
Well, they had purchased the house for about $10,000 on a land
contract from a builder. The builder didn't make the mortgage payments, and my
father who was an Irish- Catholic raised with the very strong work ethic and
sense of moral responsibility would not miss a mortgage payment to save his
life. He made his payments but as I say, the builder did not, and in due
course, the mortgage company came out and tacked a notice on the front door,
and that's when my parents realized that they were about to lose the house.
Mr. Lane:
What year would this have been?
Justice Brennan:
Early 1930's...I am going to say 1933 or perhaps 1934,
so...
Mr. Lane:
You would have been four or five years old?
Justice Brennan:
I would have been four or five years old. They would have been
paying on this house for about eight or nine years at that point in time, and
all they paid on it went down the tubes. All they really got out of it on the
advise of counsel, that indeed I think the advise of the Circuit Court
Commissioner or whoever handled the foreclosure, was to live out the redemption
period and save their money during that year, and then get something else. In
1935, they bought a home at 10311 Morley Avenue in Detroit.
Mr. Lane:
M-o-r-l-e-y?
Justice Brennan:
Yes, on the west side of Detroit, practically in the shadow of
the McKenzie High School, and it was in the same parish, Epiphany Roman
Catholic Parish that their little house on Elmira was, so it was only about
five blocks away, but I was in, I think, the first grade when we made the move.
The house was...
Mr. Lane:
Was there trauma associated with this that is still embedded in
your mind or is it just another kid's...?
Justice Brennan:
I don't know whether it was trauma so much. There was
obviously...moving was kind of exciting. We were moving into a larger home.
That was great. I remember we went to school that morning and were instructed
after school to go to the new house. "Don't come back to the old house because
we won't be living there anymore". I think more than anything else was it was
one of those family stories that reflected on the way we thought about life and
money and property and things like that.
I am not trying to suggest we grew up poor. My father had a way
of saying, "We've got the best", and he was a very good provider and a very
great anchor of security for all of us in the family. I never felt for one
moment in my lifetime that there was any doubt about where my next meal was
coming from or whether there would be a warm place to sleep or the security of
a home.
Mr. Lane:
He was steadily employed all through this period?
Justice Brennan:
Yes, he was steadily employed. As a matter of fact,
interestingly enough, he lost...he came home from his honeymoon in 1925 to find
out that he had been fired from Studebaker Motor Car Company. He got another
job, I don't know doing what, but shortly after that was employed at the
Secretary of State's office through a relative of my mother's, a man by the
name of Milton Carmichael. I don't know if you've ever heard that name, but
Milt Carmichael was a great old Republican power in Wayne County many, many
years ago and through him, my dad got a job at the Secretary of State's office
which in those days, was a very...maybe still is today to some degree, but in
those days, was an extremely volatile political job. When your party won, you
were in office, and when your party lost, you were out of office.
Mr. Lane:
Did he run a branch office?
Justice Brennan:
Eventually, he became, I think, a branch manager, but it was
one of those things that every two years, you had to go, and I believe in those
days, it was every two years, you had to go to the well politically, and so my
dad became active in politics at that point in time and became a Republican
precinct delegate, though I believe his own family - my dad was one of four
brothers and two sisters, an east-side family from St. Charles parish down
around the Belle Isle area, and I think as I came to know them later in life,
all his brothers were Democrats, so I'm sure that his being a Republican was
largely a function of the fact that Milt Carmichael got him the job and he was
expected because of patronage to support Republican causes.
My mother remembers in those days having to go out and buy a
fancy dress to go to a political ball, political fundraising gatherings when
indeed, she felt they could not afford it and the money would have been much
better spent on clothes for the children and things of that kind. So, her
recollections of politics were that they were very demanding and somewhat
sacrificial.
Mr. Lane:
This was characteristic more of the time, was it not?
Justice Brennan:
Oh, yes. They were people of the depression, raising what was
then a large family. There were five of us. I have two brothers and two
sisters. My oldest brother is Terry, I mentioned before. Then after me in 1929,
my sister Sally was born, Sara Joan...
Mr. Lane:
How do you spell "Sara Joan"?
Justice Brennan:
She never went by Sara Joan - Sally Brennan, S-a-l-l-y. She was
born four years after I, so she had been born by 1933 and four years later, my
younger brother Raymond, Ray Brennan was born, and he was born in 1937 and then
six years after Raymond, our youngest sister, Mary Agnes was born in 1943, so
you know, you go back through the 1930's and here is Joe Brennan and Jeanette
raising a family on the west side of Detroit, a three bedroom home on a 35 foot
lot. The home cost them $3,500.00. At one point during those difficult years,
the man who sold them the home on land contract wrote them a letter to say that
he thought the payments of $35.00/month were too onerous, and he was going to
reduce the payments to $25.00/month which he did.
Of course, in due course of time, my father paid off that house,
and went from the Secretary of State's office into the automobile financing
business, and he worked for General Finance at one time as I recall and then
Associate Discount which was another automobile financing company and
eventually in the early 50's, was employed by the Wabeek Bank, and he went
through all of the machinations of the Wabeek Bank when Wabeek merged with the
Detroit Trust Company to become the Wabeek Bank and Trust Company and then that
merged with the Detroit Bank and it became the Detroit Wabeek Bank and Trust
Company and ultimately became all just sucked into the Detroit Bank.
During all those years, because he was a very effective public
relations and sales man who represented the bank to automobile dealers and who
had a following among automobile dealers, he moved up the ranks and became an
officer of the bank, I think what is known in that business as an Assistant
Cashier or Cashier or something of that kind. He was very proud of that
accomplishment. It was somewhat of an accomplishment. He never went to college.
He was a graduate of ST. Joe's Commercial College in Detroit run by the
Christian brothers down by Joe Muer's, if you are familiar with it on Gratiot
Avenue, but it was basically a kind of vocational high school where the
emphasis was on learning business, bookkeeping and skills of that kind. He was,
I think, well-educated through secondary school but didn't have any
college.
My dad was always a man that wore a suit and tie, and he was
tall and stood up straight, and he had a very dignified way about him. To all
the kids in the neighborhood, he was "Justice Brennan". Justice Brennan was
kind of a figure. He did not drink. I knew him only occasionally to take a
glass of wine and finish maybe 1/2 of it at Christmas or Thanksgiving around
the table, and that stood him good stead because he would go to the MADA
meetings, Michigan Automobile Dealers Association, and when they'd get all
tanked up, Joe Brennan would drive them all home, and when I say he had a lot
of friends among the automobile dealers, I think that was a large part of
it.
He was a very agreeable man who had a wonderful sense of humor.
You could see him at a party; one of the first times my wife Polly met him was
on New Year's Eve. It was at some relative's home, and he was really having a
great time. When we came into the place, he said to her, "Somebody spiked my
ginger ale with ice", and she thought, "Boy, he's really blown away", and
suggested later that I ought not to let him drive because he apparently was
pretty giddy and of course, I howled because I knew that he never drank.
Anyway, he was a remarkable man and one for whom I had an enormous
affection.
Mr. Lane:
Did the family ties, did they continue to be very, very close
right up to the time that you left home? Did you have ceremonial dinners?
Justice Brennan:
Oh, yes. My dad...everybody had to be home for dinner except
when I got into high school and started playing basketball and I was home late
because of basketball practice. I remember when my brother Terry went into the
service how traumatic that was, and my mother would write letters to him and
those are still kept in family archives, and they paint the picture of a family
that was very close. My dad was a dominant father. The family would sit around
the dinner table, for example, on Sunday, and my mother would bring the roast
beef in or the turkey or whatever and set it down in front of my dad. He would
carve it at the table and put the potatoes on the plate and so forth and pass
the plates out one at a time around the table. It was none of what I came
latter to know as family style, the way most people ate by passing dishes
around. We never passed dishes around. My dad sat there and put everything on
every plate and passed it around. Maybe that came from a time in the depression
where he had to be careful that everybody got enough or a share or something; I
don't know. At any rate, the result of it was that if you sat on this side, to
his left, and he started things going counterclockwise, your dinner would be
cold by the time everybody sat down to eat or started eating. Anyway, but it
was a ritual. When we came to dating, we brought the girls home, the guest, the
lady would sit next to my dad on the left-hand side, my mother always on the
right-hand side.
Mr. Lane:
Was he a hard disciplinarian at times?
Justice Brennan:
Yes, he was tough. He had a temper, tough temper. My mother was
a very significant factor also. She was a...I think a very bright lady. She is
still living. She is 88, pretty much mentally deteriorated in the sense that
she does not recognize people though she is very pleasant. If you met her on a
bus, you would think what a nice little old lady she is. Lots of wonderful
opinions about things, and she will chat away, but if you ask her who her
husband was or how many children she had, she would be guessing. She couldn't
tell you. Anyway, that's now, but through her life, she was always a very
bright lady, a good writer, wrote a lot of poetry, helped us a lot with English
composition when we were in school.
Mr. Lane:
Did you do real well in school?
Justice Brennan:
Well, I was a good student. I was a good student in grade
school, you know, "B's", and A's" mostly.
Mr. Lane:
If you didn't, there would be a response at home...is that
true?
Justice Brennan:
Oh, yes. It was one of those things where I went to the
Epiphany Grade School which was run by the IHM nuns, the Sisters Servants of
the Immaculate Heart of Mary.
Mr. Lane:
IHS?
Justice Brennan:
IHM, Immaculate Heart of Mary. Wonderful, dedicated ladies.
Mr. Lane:
That's a teaching order now, is it not?
Justice Brennan:
Yes, what's left of them. They're out of Monroe, Michigan, a
lot of retirees now mostly. Wonderful, inspirational women. We had one Sister
Stephanie; I still hear from her every year and write to her at Christmas time.
Sister Stephanie Mueller. We never knew their last names, though. When I was in
grade school, that would have been like seeing them without the bonnet on, you
know, and all the rumors that they shave their heads and so on, but she was
wonderful. She'd be out playing ball with the boys, and the boys just adored
her. We'd play, have these grade school football games and as soon as the game
was over, we would rush to the convent and ask for Sister Stephanie and tell
her how the game came out and give her a blow by blow description and so on. In
those days, the nuns were very nearly cloistered. They didn't even get out to
watch football games and things like that but of course, she had a great
interest in all of our doings. I remember her telling me that I had a terrible
case of braggadocio. "You've got a great case of braggadocio". I was a bit of a
cut up in school, and she was great for dressing you down in front of
everybody. She was good at it. She was the one, I think, who told me early on
that I ought to become a lawyer, because I loved to argue. I loved to argue and
debate so I ought to become a lawyer.
Mr. Lane:
How old were you, sixth grade?
Justice Brennan:
Sixth or seventh grade, yes, around there. As I say, I was a
pretty good student and kind of outgoing in those days.
Mr. Lane:
Well now, wait a minute. Was that the time when you dressed up
like an Indian and all that?
Justice Brennan:
No, no. That's much later. In 1943, I graduated from the
Epiphany Grade School and followed my brother Terry to Detroit Catholic Central
High School which was then located at 60 Belmont Avenue within 150 - 200 feet
of Woodward Avenue, east of Woodward Avenue. Now remember, I lived on the west
side of Detroit, probably five miles from the school, so we traveled by bus,
the Plymouth-Cunniff bus typically across town to the school. I always smiled
about the great busing controversies that came later on. I was bused all
through high school, and passed a lot of schools that were closer to my home.
McKenzie High School was right across W. Chicago Boulevard from my home.
Mr. Lane:
Was it not true, though, that in this time, Catholic Central
High School was sort of a shining magnet to the great majority of Catholic
young persons in Detroit?
Justice Brennan:
Sure, of course it was, and interestingly, if anybody were
to...you can't go there anymore because the buildings have been torn down, but
if you could have a video of what those buildings looked like and what those
classrooms looked like and what that "campus" of that high school looked like
in those days, you would be flabbergasted to think that anyone thought that
highly of it. You would be flabbergasted, for example, to see as I did just
recently in some program for high school football game, or I don't know what it
was - it was some football game, but it was a record of attendance at high
school athletic events, football, and the largest attendance ever at a high
school football game in Michigan; I mean the largest and the second largest and
the third largest, I think, were all Detroit Catholic Central games, when they
played Father Flanigan's Boys Town and when they played I think in the original
Good Fellow games way back when in Brigg Stadium or Tiger Stadium which was
then Brigg Stadium. I think 53,000 people almost.
Mr. Lane:
Is that right?
Justice Brennan:
Yes, and it was a huge thing, and they were a powerhouse.
Detroit Catholic Central was regarded by those of us who came out of the
parochial school system as the local version at the secondary school level of
everything that Notre Dame represented at the college level, and of course,
those were the years when the movie Knute Rockne of Notre Dame, I guess came
out a little after that, but even the priests in our high school talked in
terms of Notre Dame. We were deeply imbued in those days with the idea that
Catholic education was important, and it's amazing to me as I look back that
first of all, how much it has changed, the general attitude even among
Catholics, but you know, the Catholic school system came out in the late 1800's
particularly, out of a difficulty that Catholic immigrants had in being
assimilated to the anglo-American culture, and finding, for example, that in
the public schools, they were teaching the Bible, they were teaching the King
James version of the Bible. It was long before Americans got united for the
separation of church and state or any of those issues were ever raised by
anybody. Nobody doubted the fact that the people in the community had a perfect
right to teach the Bible to their children, and they taught the Bible according
to the version that represented the majority opinion in the community. The
Catholic bishop said, "No, you're teaching heresy to our kids. We can't go to
the public schools. We'll have to start our own school system". Unlike the way
things are today, they didn't go the Supreme Court and say, "You can't teach
the Bible to our kid" because the Catholic bishops never doubted that the
Protestants had a perfect right to use the public school system to teach the
Bible to their children, but they said, "We don't to teach your Bible to our
kids. We're going to start our own school system", which they did.
Mr. Lane:
When did the Catholic school system pick up a good head of
steam and be sort of systemic throughout the populated parts...?
Justice Brennan:
I'm giving you the motivation for its beginning was because the
Catholic bishops felt that their people were being exposed to all this heresy
in the public schools and of course, many of them were immigrants, Irish,
German, French and so on, and Eastern European, and they wanted to maintain
their own culture, but specifically, their own religion, so that was the reason
why it was created. Because there was still in those days a tremendous flow of
religious vocations, nuns and priests, who would work for nothing or next to
nothing, it was economically possible to have a competing school system and
make it work. I sort of came along - I was born at the tail end of this or
maybe the apex of all this, and I remember the priests from the pulpit in
August, late August or early September, preaching hard and vigorously to the
people, the parents, that "you have a moral responsibility to the religious
education of your children. If it is at all possible, at whatever great
sacrifice, you must - you have a responsibility to send your children to
Catholic schools", and you know, and the only...my sense of it was growing up,
the only Catholics who sent their kids to public schools were people who came
from mixed marriages where they had married a Protestant, you know, one of them
or basically poor people, people who were simply too poor, and you had to be
awful [expletive] poor because in the days when I went to Epiphany School, on
Mondays, we brought our two dollars for tuition. That's the way the schools
were. The kids brought their two dollars for tuition on Monday.
Mr. Lane:
Lunch money.
Justice Brennan:
Oh, yes. They went through the classroom and collected the
tuition money, two bucks a head. The oldest one in the family brought the
tuition money, so I mean, it was a shoe-string operation but a [expletive] good
education. I mean, the atmosphere in the classroom was the same as the
atmosphere at home. The nun,...I later learned that the legal expression was
"in loco parentis", but she sure as hell was in the loco of the parentis and if
she rapped you at school, you didn't go home and tell mother and dad because
they'd rap you for getting rapped at school. I mean, it was part of it. But
this carried into high school, and in high school, I met these marvelous
priests that came out of the Basilian fathers.
Mr. Lane:
Say that again.
Justice Brennan:
Basilian, it's St. Basil, B-a-s-i-l-i-a-n, and the formal name
of the order is the Congregation of St. Basil, CSB, and they're based in
Toronto, Ontario at St. Mike's College, the base of the order, and they have
now and then, I guess too, a number of places where they supply the faculty.
They operate St. Thomas College in Houston, Texas and of course, St. Mike's
College, St. John Fisher College in Rochester, New York and a number of high
schools around.
Mr. Lane:
Do you know how John Fisher is spelled?
Justice Brennan:
I think it's F-i-s-h-e-r. But I remember, to give you an
example now, I am 14 years old, and I am in my first year in high school. The
priest walks into the English classroom, and there were five classrooms of
freshman at this high school. I think we were on the third floor of the
building. It was a third floor walk-up. The principal...I'll give you an idea
of what this school was like. The principal's office was located on the landing
of the front stairway. I mean, the building was designed; that was designed
merely to be the landing where you turned around and the stairway would come up
this way, turn this way and went back that way, but half of that landing had
been walled off and made into the principal's office. That's where the
principal's office was, and so it was not fancy by any means. I mean, we had no
swimming pool. We had no lot of other things.
Mr. Lane:
Administration did not reign publicly.
Justice Brennan:
That's right, there was no gold spittoons, but in any case, and
I'm guessing there were 60, at least 60 students in my classroom, my section
which was 9...I think I was in 9- 3; 9-1, 9-2, 9-3, 9-4, 9-5. Those were the
five freshman classrooms, so I was in 9-3, and the homeroom teacher was Father
Matt Sheedy, S-h-e-e-d-y, a burly Irishman from Toronto who came in and had
this absolutely new malicious laugh, and shake his head. "Poor fellow, we had a
guy in here last year. He kept talking during class and he chewed gum. Poor
fellow, boy it was just terrible the way it turned out for him", and he put the
fear of the Lord into us. I remember there was a fellow who sat in the front
row. His name was Sonnenberg, and I forget what Sonnenberg's first name was,
but there used to be a wrestler by the name of Gus Sonnenberg, and so, of
course, the first day he walked in there, Father Matt Sheedy nicknamed
Sonnenberg "Gus". He was then Gus Sonnenberg from then on, and that's all we
ever knew him by was Gus Sonnenberg. So, this particular day, a homework
assignment had been given out. Father Sheedy comes in and says, "Well, Gus, why
don't you read us your essay that you wrote last night?" and Sonnenberg sort of
puts his head down and shakes his head back and forth, "Haven't got it,
Father." "What do you mean, you haven't got it?" "Well, I didn't do it." "Gus,
you're not telling Father you didn't do your homework?" "Yes, Father, I didn't
do my homework", and so then Father Matt Sheedy begins to collect the homework
from all the other students, starts in the first row and he goes down both
sides collecting the homework from the boys and as he collects the homework
from each boy, he says, "Look, Gus, Bob got his homework. Fred brought his
homework in. Here's the homework from Charlie. You're not telling Father you
don't have your homework?", and he continues this monologue as he goes through
the classroom. Now he comes back up between the third and fourth aisle. He is
now approaching Gus from the back and continuing this monologue about people
turning in their homework until he finally gets back to Gus again. Now he is
standing, hovering over Gus and he says, "Come on, now, Gus, you really have
your homework, don't you?" "No, Father, I don't have my homework" whereupon
Matt Sheedy took his right hand and you know, he had been offered to play
hockey for the Maple Leafs and he turned it down to go into priesthood, so he
was an athletic guy. He whacked Sonnenberg across the back of the head, just
one quick karate chop, I guess, and Sonnenberg's head went down on the table
like it was cut off. He went out cold. Father Sheedy, I think, got a little
nervous that he maybe had gone a little too far, and so he turned to the poor
fellow who was sitting in the first seat by the door and he says, "Well,
Willard, don't sit there. Go get him some water". Willard Graham gets up and
out the door and he later said he didn't know what to do. He had no container
with which to bring any water. He sort of went and stood at the drinking
fountain wondering what to do, whether to get a handful of it or a mouthful of
it or what, but in a moment or two, Gus began to come around. Father grabbed
him by the hair and kind of held his head up like this and shook it. He was
woozy and he was rolling around like this and Father says, "Now, you all right,
Gus?" "Yeah, Father, I'm all right". He said, "Now, Gus, I didn't mean to hurt
you, Gus, but you got to do your homework". So, now you can imagine. I'm
fourteen years old, and I've just witnessed this scene along with sixty other
boys. The fear of the Lord Almighty goes right down to our toes. I mean, we are
not going to come to class without our homework from then forever, you know. It
was just great. I believed then, and I believe now and I believe all my life
that the experience of adolescent boys being taught by men is an absolutely
unequaled thing and it has so many great advantages in terms of learning
discipline, responsibility, sportsmanship, fellowship. In that setting, it was
not uncomfortable for the priests to talk about loving, about respecting women,
about being a caring person. In the presence of girls of that age, it would
have been the source of giggling. It wasn't when the priests talked about it in
front of the young men. Anyway, I credit those years as most significant point
in my own personal development. I just discovered this morning that my
secretary has typed up, apparently while I was on vacation last year, every
speech that I ever gave that she has around here, and they go back to 1944;
these big blue volumes...
Mr. Lane:
Did you say "1944"?
Justice Brennan:
1944.
Mr. Lane:
You were fifteen years old.
Justice Brennan:
Yes. We're talking about, you know, the influence of these
priests and this school on me, okay?
Mr. Lane:
Right.
Writing speeches as a teenager, and urging for equal rights for African-Americans.
Justice Brennan:
And the first speech in the book was, the first couple were
speeches I gave in oratorical competitions, and in my four years at Detroit
Catholic Central, I won the oratory competition every year.
Mr. Lane:
Well, now, you're fourteen. You're talking about when you're
fourteen as a take-off point. Now, you obviously,...you mentioned that the
sister in sixth grade or whatever said, "you ought to be a lawyer. You like to
argue so much". You also mentioned about braggadocio. Had it become a
characteristic somewhat earlier, now I'm talking about prior to 14, that you
were inclined in that direction and perhaps, was there some direct cultivation
and careful cultivation by your father and your parents perhaps? Do you see
what I'm trying to say? You must have gotten a real early start in way that
wasn't maybe structured, but were you encouraged, for example, to play the
leading role in the Christmas pageant or whatever the heck it was? You know, do
you see what I'm trying to ask you?
Justice Brennan:
Yes, you're quite right, and from the earliest days, we were
expected to get up and recite. When we went to family gatherings, when we were
in school, our parents would say, "Now, Tommy, you get up and recite your poem
or sing the song", whatever it was...
Mr. Lane:
And this was a parental encouragement.
Justice Brennan:
Oh, yes. They were showing off their kids to their aunts,
uncles, nieces and everybody else, but that we were always expected to do that,
to get up and as I look back on it, some of my cousins were much more reticent
to do that. They'd be shy, but the Brennans and particularly myself and my
brother, would get up and entertain at the drop of a hat, you know, sometimes
not very well prepared, but we were never shy about getting up and doing
it.
Mr. Lane:
As you look back, was there a certain sort of a gratification
in this?
Justice Brennan:
Well, it was what your parents wanted you to do.
Mr. Lane:
They approved.
Justice Brennan:
They approved. They encouraged you to do it. Obviously, you got
applause. That was recognition and so forth by older people. I don't know. It
just...
Mr. Lane:
I didn't mean to dwell too much on this.
Justice Brennan:
Well, that's sort of where it came from but anyway, by the time
I was in high school...it was in high school that I began speeches, and as I
say, I won these oratorical contests every year. In my freshman year, the
speech had to do...it was 1944...with the impending end of the war and my
visions of the peace table and what the different countries were going to do
and say and the positions that they were going to take at the peace table and
so on, and as you would well imagine, what I...it's interesting...now, this is
a 14 year old boy predicting what the United States of America would do when
the war was over. "Last, of course, we would come to the United States with
being a democracy herself will undoubtedly support world Congresses, world
courts, world peace and a chance for the aggressor nations to get back on their
feet. American hard in war and gullible in peace will probably feel that by
killing a few of the more notorious enemies, the possibility of new world
conflict will be destroyed. She will go out of her way to re-establish those
little republics and kingdoms that were inaugurated after the first World War.
As long as everyone else at the peace table is happy, the United States will be
satisfied".
Mr. Lane:
What year is this, now?
Justice Brennan:
1944. I wrote that when I was 15 years old, okay?
Mr. Lane:
This, of course, would have been in part an extension of your
instruction in the classroom about current events, and...
Justice Brennan:
Oh, yes, we were getting a good...but I never had a course in
current events, never in my life. We had courses in history. We learned Latin
but remember that I grew up...at a time when there was a war going on. You read
the newspapers. I mean, we talked about it. We talked about it at home. We
talked about it...I mean, the priests would talk about it in English class.
They would use examples or they would actually get off the track and maybe talk
about things that were going on in the world, but not because we studied
"current events". We were learning English literature, you know, and so forth.
Of course, as you can well imagine, my final paragraph, I urged that what ought
to happen is that the Pope ought to be involved in the peace process. My
sophomore year, I gave a speech having to do with "one of the most pressing
problems that faces the nation when it has successfully concluded a war is that
of occupying in a useful manner the discharged members of its armed forces",
and I went on and talked about what they ought to do with the veterans when
they come back.
Mr. Lane:
This would be given to sort of an assembly of students as part
of a contest to...
Justice Brennan:
Oh, yes, and like all of the freshman classes, the five
freshman classes would be grouped together in the gymnasium. There would be
four or five finalists. We would speak and they would select a winner. Junior
year - now I'm 17 years old or thereabout - "God created man to his own image
and likeness", it starts out, and it is all about...
Mr. Lane:
That's right out of the catechism, isn't it?
Justice Brennan:
Oh, yes. It's all about race and its all about "the white man's
soul, the dark man's soul". It goes on to talk about "the American ideal, that
the Negro be not only free and equal for freedom and equality are empty words
unless backed by serious individual conviction, but that the Negro be given the
opportunity to prove that equality, physical as well as spiritual must be a
part of his make-up if he is an image of his creator. Can we call this
principle idealistic, theoretical, unfit for practical use? I hardly think so",
and so on. I think it's interesting because, you know, I think of myself and my
own later political views and how I was regarded by people, that these
were...in calling black people "Negroes" in those days was the appropriate
word, I guess.
Mr. Lane:
Hell, in the United States Reports, they are Negroes until 1965
or 1966, I think.
Justice Brennan:
But, "When Christ said, 'Going therefore teach ye all nations',
he didn't mean teach the white peoples of the earth because God sees through
black skin as well as white when he probes the inner workings of the soul. We
try to support our resentment of the Negro's equality by saying he is ignorant,
not our mental peer, and yet we exclude him from our school which means merely
that if we really believed him to be ignorant, we haven't the charity to teach
him".
Mr. Lane:
They were excluded from your school?
Justice Brennan:
No, but I think there were maybe only one or two in my
recollection.
Justice Brennan talks about racial prejudice, high school, and attending the University of Detroit Law School.
Justice Brennan:
And I'm talking about, you know, wrong to exclude the Negroes
from our school. "We say the Negro is dirty, and yet we forbid him to enter
decent places to eat, places that are clean and orderly and promote good
manners, for what are manners but respectful courtesy for something that
demands respect, and what respect is demanded by a restaurant that is dirty.
Serious interrogation that finds us unable to explain fully our feeling of
superiority and distrust of the Negro actually, it has come time for another
migration to the New World, another Declaration of Independence, not a physical
migration nor a verbal declaration but a need to rejuvenate our mode of
thinking. Some ruminants of those years of the old world have survived. We
cannot flee them this time. We must stay and cast them out. Racial prejudice is
not innate. It must be learned. It must be cultivated in an atmosphere of
arrogance. Watch the little children play. They haven't learned yet. Haven't
lived in that atmosphere of arrogance long enough to feel guilty, feeling
superiority", and then I go on to talk about little kids playing, Black and
white, and getting along and so on.
Mr. Lane:
Did you, for example...were you on the athletic teams and were
there colored, Negro players that you got closely associated with? In other
words, was your thinking along this line somewhat stimulated?
Justice Brennan:
No, and I'll tell you...I'll tell you that...let me think now.
This would have been my junior year...yes. I'm trying to think of my first
association with Black people. I can't recall there being any black kids in my
class at Detroit Catholic Central High School. There may have been some in the
class, but there weren't any in my class, okay.
Mr. Lane:
They were excluded? It was just a matter of percentages.
Justice Brennan:
They weren't excluded but again, very few blacks were Catholic
and very few could afford to go and pay tuition at a school, although today,
there are a lot of them, Black parents are sending their kids to the Catholic
schools because they want the discipline, what's left of them in the Detroit
area. But, that summer, between my sophomore and my junior year in high school,
I worked for the City of Detroit; got a job through the influence of my uncle,
and I counted traffic. We used to go to different corners and sit there with a
clicker and count the traffic because they were doing a survey as to where to
build grade separations for the railroads, and I met a black fellow. He was on
our crew. I forget his name, nice guy, but we had a lot of time to sit there
clicking and talk, and I can remember having many, many conversations with him
and just comparing what it was like for him to grow up in Detroit and what it
was like for me to grow up in Detroit. We just got to be good friends. We
talked a lot, and I think that was part of it. Plus, clearly the priests, and
this one particular priest, Father Norbert Clemens who was working with me at
that time and was a counselor and a coach, speech coach.
Mr. Lane:
I heard about him from Justice Ryan.
Justice Brennan:
Clemens, C-l-e-m-e-n-s. He was my speech coach, and he also...I
mean, obviously, my advocacy of civil rights was religiously motivated and
oriented, and I talk in terms of equality before God, you know, as being made
in the image, the likeness of God, so it wasn't...to me, it was a little bit
based, as I recall, on having met this black fellow and worked with him the
previous summer, but it was more a theoretical thing with me because I didn't
have a lot of black friends. Then in 1946, in addition to my oratorical
contest, speech, I began getting into oratorical competitions that were
conducted by the Detroit Times, the Hearst newspaper oratorical competitions
and they, every year, had this competition throughout all the high schools, and
it was always based on a particular historical figure, patriot, an American
patriot, and so I got into these things. James Madison was the subject in 1946.
I always won at Catholic Central and I generally didn't get too much further
after that. I would lose in the regionals or whatever.
Mr. Lane:
You must have had sort of a zest, then, for this kind of
activity?
Justice Brennan:
Oh, yes, sure. So anyway, and there's a little story to that
which I will come to. I graduated from Detroit Catholic Central in 1947. I was
the valedictorian of the school, of the class, and went on to the University of
Detroit. By that time, I had pretty much determined I wanted to be a lawyer. As
a matter of fact, in the yearbook, under my picture, it said that "Tom Brennan
will go to the University of Detroit and study law". Incidentally, you, being a
journalist, may enjoy this: I was also the editor of the school paper while I
was at Detroit Catholic Central. The Indian costume was that I had sort of a
comic lead in one of the musical productions, and I played the part of Chief
Squatting Cow. Now, I have to tell you about this, because it is an interesting
thing. This Father Clemens that I speak of was a very able theatrical producer
and he used to go down to New York in the summer time with a crew of two or
three students, and they would select a current Broadway play that they wanted
to put on at Detroit Catholic Central. They would buy the album so they'd get
the music. Then they would go to the play two or three nights in a row, go back
to the hotel room and re-construct the dialogue from memory, and that's how
they'd get the scripts. They would then come back to Detroit Catholic Central
in the fall and give the play a different name, use all the same music, same
story line and to the extent that they remembered it, the same dialogue, but
there would be some changes in dialogue, some dressing up of the dialogue,
maybe to change it to be a little more appropriate. Men would play the parts of
women, like Hasting Pudding in that respect, I guess, and these plays were
marvelous. They would go on for three or four days. They would have played to
18,000 or 20,000 people. They'd fit...I don't know, they'd fit 2,000 or 1,800
or something in the auditorium, so they would run it two weekends or seven
performances or eight performances. It would get up around 12,000 or 14,000
people who would see it. I am exaggerating at 20,000, but maybe 12,000 or
14,000. So the particular play which I was the Indian was then running on
Broadway under the name of "Annie Get Your Gun". When we did it at Catholic
Central, it was called "Rifles Aren't Romantic", and instead of being Chief
Sitting Bull as Ethel Merman would be singing with, I was Chief Squatting Cow
and the part of Ethel Merman was played by the second string quarterback of our
football team, a young man named Dervin Flowers, and Dervin did a very
creditable job. In any case, I did not know it then, but one of the young
ladies out in the audience was a girl from Immaculata High School by the name
of Pauline Weinberger, and Pauline thought this guy in the Indian costume was
the funniest and as a matter of fact, sang a song. I sang a song called the
Mississnawa. It was about the river, the song "Went by the
Miss-siss-siss-siss-siss-siss-siss-siss-sissnawa, da-da-da- da". It was
humorous and had maybe a series of six or seven verses, choruses that were all
very funny. In fact, I wrote the words to the song and a classmate of mine,
Bill Dresden wrote the music, so we embellished "Annie Get Your Gun" with some
of our own stuff. Anyway, all under the tutelage of Father Norbert Clemens who
was a great leader and inspiration to all of us. So, now I graduated from
Catholic Central, go on to the University of Detroit, and...
Mr. Lane:
What is the year, now?
Justice Brennan:
This is 1947, in the fall of '47. As a matter of fact, in that
final year, I played basketball. I was...my only moment of glory was in the
Christmas tournament. I scored a few points in the waning minutes of the game.
We were winning anyway, but I was a second stringer and loved to play but
wasn't that strong or aggressive. I had a good shot, but I was tall and skinny.
I'd go up under the basket and get pushed aside by the sturdier lads, and
finally when the state tournament started, we were going into rehearsals for
"Rifles Aren't Romantic", and I had to make a choice between the play and the
basketball team, and I left the basketball team, which is rather amazing when
you consider that the coach of the basketball team was this Father Matt Sheedy
who had been my freshman English teacher, and I was still scared to death of
old Matt Sheedy.
Mr. Lane:
You grew up at 14 one day.
Justice Brennan:
Boy, yes. He died this last year, Matt Sheedy. What a great guy
he was. Anyway, so in any case, I started the University of Detroit in the fall
of 1947. There was a whole influx of young men and...mostly young men coming
back from World War II. At that time, had just mustered out, had the benefit of
the GI bill and were starting their college education or continuing their
college education, so the colleges were bulging at the seams. The University of
Detroit re-opened Dowling Hall, a building that was constructed in 1877 down on
Jefferson Avenue.
Mr. Lane:
D-o-w-l-i-n-g?
Justice Brennan:
D-o-w-l-i-n-g, and which had for some years before that, been
open only in the evening for the evening College of Commerce and Finance, but
in the fall of 1947, they re- opened it for the College of Arts and Sciences
but only for freshmen, incoming freshmen. It was a curious kind of atmosphere
at Dowling Hall in the fall of '47. You had a lot of people who were young men
who were in the early and mid- twenties who were coming back from the war and
some who were older than that who were married and starting college education,
serious students. Then you had a gang of us who were 18 and who were just
coming right out of high school, but in any case, there weren't any upper class
men. It was all just freshmen in this building, and there was a great
camaraderie that developed there in that year. A lot of friendships made and a
lot of good things happened. That is where I met my wife and we met a full
crowd of social friends who have been friends ever since. The next year, I went
up to the so-called "uptown" campus at Six Mile and Livernois and continued my
education. I was in Arts - Pre-Law. I remember that I was very pragmatic about
going to school. I wanted to hurry up and get my law degree and get out and
start making money.
Mr. Lane:
At this time, did you get good family support? You did not have
to work, did you?
Justice Brennan:
My dad said to me, "Tom, you're a good student." I graduated
fourth in my class in high school, and I had a 92.5 average for the four years
of high school. As a matter of fact, I recall in I think it was my sophomore
year, I got all A's. It was the only year I got all A's, so I got mostly A's
all the way through with a 92 average, and my dad said, "You're smart. You
ought to go to college." He said, "Here's the deal I'll make with you. You can
live at home for nothing, and that's your scholarship and while you go to
college, you pay your own way, and you don't have to pay board except in the
summertime when you're not going to school", so I thought that was a very
generous proposition, and I proceeded to go to school.
Mr. Lane:
Did you have to borrow for tuition?
Justice Brennan:
No. Nobody would loan you any money anyway. There was no place
to borrow. I had no credit. I had no job. There weren't any programs like there
are today where people can borrow money to go to school with the Federal
government standing behind it. No, I worked in a bowling alley setting pins. I
worked in the summertime obviously, I worked...the summer before I started
college, I worked at the railroad, many times pulling double shifts, working
loading mail onto box cars down at the old...what do they call it?...down there
at 14th and Michigan Avenue. I want to say Union Station. It wasn't Union
Station - Michigan Central Station, Michigan Central Railroad Station, and I
worked, I'd go in at 3:00 p.m. and work until 11:00 p.m. and oftentimes get a
double shift and work until 7:00 a.m., so I saved up my money to go to school
that way. Basically, during my freshman year, I didn't have to work because I
had saved enough money to pay my tuition. Then in my sophomore year, between my
freshman and sophomore year, I got a job at the Wolverine Stone Company. This
was all like stone facing that you put on buildings, limestone sills and door
steps.
Mr. Lane:
Grave markers?
Justice Brennan:
No, we had a little of that though basically not. Usually,
that's granite. We dealt in limestone, sandstone, construction stone mostly
though I do recall, we made fireplaces out of stone, and we used to set the
fireplaces up and number the bricks, the stone pieces and we would draw a
diagram for the brick mason who would put them all together on the job. In
fact, one of my great...I worked there for three summers. One of my great
accomplishments during that time was to carve a limestone fireplace which is
somebody's home down in Detroit to this very day. I couldn't tell you where,
but I literally carved it with a air hammer, you know, a chisel like this, and
so those were my hard-working days. I drove a semi down to Indiana to pick up
stone and things of that kind, and learned and discovered what the language of
the working man is which was the combination of the language of the working man
and the language of the dog-faced soldier because men I worked with were men
who had served in the second World War and who brought back with them not only
a spirit of American enterprise but a cultural whatever. So...
Mr. Lane:
Were you on a combination course, two years of general arts and
three of law or that sort of thing or were you?
Justice Brennan:
I don't recall that. I was on a track where if I could generate
62 hours of pre-law credit, I could be admitted to the law school. I don't
recall that I had to have any particular grade point average to do that. I do
remember, however, that the course, my sophomore course in religion was not an
acceptable credit to get into law school and I talked to my advisor. I said, "I
don't want to take this. I don't need this to go to law school. I've already
taken all the religion that the law school will accept for pre-law credit". The
advisor said, "This is a Jesuit institution. You will take religion because
everybody must". I had a priest called Father Madgett and the subject had to
do, it was a speculative religion course having to do with what heaven was
going to be like. I found the whole thing totally impractical and not
particularly inspiring, and I did everything I could do to get kicked out of
the class, and I finally flunked it.
Mr. Lane:
How did Father Madgett spell his name? Do you remember
that?
Justice Brennan:
M-a-d-g-e-t-t, I think, a sainted man of sainted memory who has
gone to his eternal reward and I'm sure is now proving that everything he told
me in that class was absolutely correct, and when due course of time comes and
I meet my eternal reward, I am sure Father Madgett will say, "See, I told you
it would be like this". In any case, I had a lot of fun, but I also worked. I
worked in a burglar alarm company and my job was as a dispatcher, a night
dispatcher. I'd go in on Friday and stay at the burglar alarm company until
Sunday night. I had like a 30 hour shift, and there was a cot there to sleep
on. What I basically had to do was to be there in case the phone rang, somebody
would call and say, "You people have a burglar alarm that just went off on the
corner of Meyers Road and Seven Mile Road" or whatever, and I would immediately
call the police and dispatch the repairman to go out and fix it, because nine
times out of ten, it would be the wind or something like that. We also had some
silent alarms which became the state of the art afterwards, but we had a few at
that time where the alarm came directly in on a ticker-tape, and you had to
call the police and send them out. I remember that every Monday, I would go
over to the alarm company which was only a 1/2 block away from my home and get
my check, and the check was for fourteen dollars and twenty some odd cents. I
would take the check and go up to the Bursar's Office at the University of
Detroit and give them $10.00 of the $14.00 and the other four bucks was for me
to live on for the rest of the week. A lot of fun. Anyway, among other things,
to help me to operate, a 1928 Essex that I had acquired for $75.00 the previous
summer and when I got it home and we took the head off the engine, we found out
that the #5 cylinder was completely empty. There was no piston, no rod, no
nothing. You could see the oil pan right down through the darn thing. I spent
all that summer trying to purchase a piston and rod for a 1928 Essex and
believe me, there are not a lot of those around. You don't go to the K-Mart and
say, "Give me one", you know, but it was a great old car. We finally got it
running barely. It never went more than 32 miles per hour, but we got it up to
32, and I did drive it to school a few times in my sophomore year.
Mr. Lane:
I suppose that was before the time when you would apply to the
government for a remedy and declare that you had bought a lemon.
Justice Brennan:
That's right. Well, we knew what we were doing. As a matter of
fact, we told...Burt Baker was an automobile dealer on the corner of Grand
River and Livernois. He had a big sign that said, "If you've got $50.00, I've
got a car". We went in and said, "We've got $50.00". Actually, it was not my
car because there was only one of us in our crowd that was old enough to buy a
car. The fellow's name was Lloyd Penner, and Lloyd Penner was an orphan who had
moved in with Mike Foley on the next block. Mickey and Jerry Foley, and the
Foley boys, they picked up Lloyd Penner, I guess because Mike Foley worked at
the Detroit Times, and he met Penner, and why or how, but Penner moved in with
them. He was 21 or at least, he had proof to indicate that he was 21, and I was
only 18, but I was the only one who had a decent job, and I had $75.00 so I put
up all the money, and we took title in Penner's name. But everybody knew it was
my car regardless of the fact that the title was in Penner's name. Anyway, we
had a lot of fun trying to get the car going, and actually did get it running a
few times that year. I'll come back to the car in a bit. Sophomore year - I'm
still, even in college, being involved in the college version of the Hearst
Oratorical Competition, and I think I won at the University of Detroit maybe
once during that time, but I was anxious to go right to law school and in fact,
I did start law school in the fall of 1949 after two years of pre-law study. I
was then 20 years of age. I remember, I'd worked in the stone yard, saved my
money. I was...fall of 1949...already dating Pauline Weinberger whose nickname
is Polly and who has been my wife now for 39 years, so we were dating. I went
down to the Penobscot Building. I wanted to get a job as a law clerk, so I went
to the Penobscot Building. I didn't know any lawyers. My Uncle Emmett Sullivan
was a lawyer by training but he worked for a bank. He worked for the City
National Bank, and he didn't believe that anybody could make a living
practicing law. His recollection from the depression was that was a wrong thing
to do, and he really didn't have any particular connections or so it seemed,
and in any case, in our family, you never went to relatives to ask them for
anything, so I went to the Penobscot Building, and I stood there in the lobby,
and I looked under "O" because I figured there was going to be some Irish guy,
O'Malley, O'Toole, O'"something", and I'm going to walk in and say, "I'm Tom
Brennan. I go to the University of Detroit Law School. I'd like a job as a
clerk", and he is going to say, "Hey, Brennan, you sound like a good guy", and
I'm going to get hired. So I go upstairs. There are no "O's". There are no
lawyers that start with an "O", and right after the "O's" come "R", and there
is a lawyer by the name of Roberts, and I said, "That's good enough". I go
upstairs to Roberts' office, and I walk in, and as I'm going through the door,
I notice the name Abbott is also on the door, something Abbott and Roberts and
so on, so I say to the young lady, "I'm here to see Mr. Roberts", and she said,
"Mr. Roberts is not here". I was very quick. I said, "Then I'd like to talk to
Mr. Abbott". She said, "Who shall I say is calling?". I said, "Tell him that
Justice Brennan is here to see him". She said, "Have a seat". I sat. A little
while later, she ushered me in and behind this large desk was a lovely
white-haired gentleman, somewhat pudgy, very benign face by the name of Arthur
Abbott, and Arthur Abbott, I soon learned, had been an adjunct teacher at the
University of Detroit for 25 years, ran the Abbott Bar Review course was his
venture, and took a great interest and a very kindly interest in me. He didn't
have any clerkships there at the law firm but he picked up the telephone and
called the Detroit Bar Association Law Library because he was on the committee
of the Bar that ran the library. He spoke to the librarian and anyway, she
agreed to interview me for a job in the library and shortly thereafter, I was
working in the Detroit Bar Association Library for the magnificent sum of
$0.50/hour putting books away and learning how to use the library. In any case,
Arthur Abbott's son, John, later was the Dean of the Detroit College of Law for
many years, so that was my first exposure to the Abbott Family. Anyway, I
worked at the Detroit Bar Association Library in my freshman year in law
school, and then in the summer between by sophomore and junior year in law
school, I worked at the stone yard again, left the Bar Library and went back to
the stone yard. That summer, I also had a second job. I worked at the stone
yards from 7:00 a.m. until about 3:30 p.m., and then I dashed out, got on a bus
and got across town to around Cass Avenue someplace where I picked up my truck
from the Ludington News Agency, and I drove a truck for Ludington News Agency
on the afternoon shift, delivering and picking up film from drugstores,
particularly in the downriver area, so I can remember there was only a driver's
seat in the truck, and on a couple of occasions, my girlfriend, Polly, would go
with me, and she had to sit on a box that we would bring along that was there
and ride along. That was a big date. She would ride along with me on the truck,
and we'd go pick up films out in Wyandotte and maybe stop for a cup of coffee
or something.
Mr. Brennan:
The purpose of my working the second job was to save money for an
engagement ring. By the end of the summer, I had stashed enough money away to
buy a diamond engagement ring, and in the fall of 1950, my brother was married.
He was married in September. On October 7th, Polly and I went down to pick out
the diamond ring in the morning. We ordered it from the jeweler and that
evening, my parents had their 25th wedding anniversary celebration which we
kids worked on and put on for them. Four days later, Polly's father died. Now,
I'm going to take a moment to back off and tell you a little bit about my wife.
Her dad was an immigrant, and her mother was an immigrant. Her dad came from
Germany. Her mother came from Muckryn, Hungary at the age of 14 or 15. I can't
even spell it. It sounds like Muckryn. She came at the age of 14 or 15 alone,
worked as a house servant for a dentist in Philadelphia, saved enough money to
send for her family and brought them over, her mother, her brother and sister.
In the meantime, Fred Weinberger, my wife's dad came from a large, somewhat
upper crust Jewish family in Germany. His father was a military man, I think,
and his grandfather raised horses for the German army. He came here in about
1905. In about 1912 or 1915, his mother wrote to him and told him to come home
and fight for the fatherland. He made application to leave and then couldn't
get out, and his citizenship was held up for several years because of that, but
ultimately, he became a citizen. He worked at the Detroit News. He was a
stereotyper for the Detroit News as was his brother-in- law, Polly's uncle, Joe
Lobb, and they were both very active and on the board of the Detroit Newspaper
Industrial Credit Union which you may recall back in the old days. The printers
and stereotypers put them on the in and the reporters and photographers took
them on the out. Roy Marshall was the head of it, but Polly had two older
brothers, Joseph Weinberger and Emmanuel Weinberger who were maybe eight to ten
years older than she was. Her oldest brother Joseph was killed in an automobile
accident in 1936. He was 20 years old. Two months later, her mother committed
suicide. That would have been in 1936. Her grandmother then lived with her and
her dad and her other brother, and I think maybe in the late 1930's or early
1940's, the grandmother died. Her second brother was killed at Salerno. He was
a paratrooper killed in 1943, so where she had grown up as the youngest child
and only daughter in a family with two brothers, dad, mother and grandmother, a
house full of people; by the time I met her in 1949, she was just her and her
dad. As a matter of fact, the father had had an unhappy marriage after the
mother died and was divorced and so on. Curiously, she did not know that her
father was Jewish. He was a Catholic. He went to Catholic church and sent her
to the Catholic schools, insisted that she get her Catholic education and so
on. He was somewhat an antisemetic fellow, strangely enough. We didn't know
much until much later. We were somewhat estranged from his family, but in any
case, on October 11th, I got the phone call. She was home alone with her dad,
that he had just died in her arms. So we put off the announcement of the
engagement for a little while, but about a month later, we got engaged, and
then began to make more specific plans to get married. We were going to wait
until after I graduated. The Korean War was heating up, and they were deferring
young men during the war to finish their education, so in my junior year of law
school, I was married.
Mr. Lane:
This would have been 1950, would it?
Justice Brennan:
1951. In 1951, I was married in April, April 28th. In my senior
year, my son Tom was born in 1952. He was born in March. That senior year, I
got into the Hearst Oratorical Contest again, and I won it at the University of
Detroit and then I went to the tournament at the old Savognard Club, I think it
was...no, it was a club up in the top of the Penobscot Building. I can't tell
you the name of it, but anyway, they had the finals there. College
representatives were all there. The judges went back. They came out and were
about to announce the winner when Harry Tayler who was the guy from the Detroit
Times who ran the contest had this whispered conversation. The judges went back
in and then came back out and announced the winner, and it was the guy from
Wayne State or whatever, and then they came over and told me that I had won by
the vote of the judges but that Harry had had a ruling from the home office of
the Hearst People, that I was ineligible because I was a fifth year student.
Well, I was still an undergraduate. I had never gotten a degree of any kind,
and originally thought I was eligible for the competition. They had gotten this
ruling that I was ineligible so they had to take it away from me, okay. But
they were kind enough to give me the same savings bonds that I would have
received had I won, but I didn't get to go on to New York to the next level of
competition. That was, in a way, not a bad thing because you know, oftentimes,
good comes out of evil, because I think the Detroit Times, Harry Tayler, felt
very badly that they had sort of misused me this way. The decision had been
deliberately made that if I didn't win, it didn't matter so they weren't going
to say anything but if I did win, they were going to have to take it away, so a
day or so later or the next day in the Detroit Times, a big picture of Tom and
Polly Brennan at the dinner, at the banquet and so on and so forth and the
story tells the winners of the competition and so forth, but there was also
this young law school student at the University of Detroit who happens, at this
time, to be a candidate for the state legislature, which I was in 1952. I was
then working at Burton Abstract and Title Company as a loan closer, and I had
decided to run for the state legislature. I walked across the street to the
City County Building, and I saw old Judge John V. Brennan, and I told him that
I was going to run for office, and I expected I'd get a lot of votes because of
his popularity and what he'd done for the name, but I would hope that I would
not sully the name of Brennan in politics, and he was very impressed with that
and my coming to see him. I went out and then got 300 signatures, because I
didn't have $100.00 to file a filing fee so I had to get the signatures. That's
how I got on the ballot. I ran for the state legislature. Anyway, the Detroit
Times, I suppose felt so badly that they had gypped me out of my victory that
they gave me a little bit of press and attention. That summer in the primary
election, I came fifth out of 80 candidates for 21 nominations to the state
legislature. You may not recall this but back in those days, the City of
Detroit was one legislative district and had 21 representatives elected at
large from the city and of course, the 21 representatives were all Democrats.
The Democrats had something like 110 candidates for the 21 positions, and the
Republicans had 80 candidates for the 21 positions on the ballot. I came fifth
out of the 80 and was nominated whereupon the Detroit Times did an editorial
about what...it was called "A Healthy Political Sign", and the gist of the
editorial was here was a young man who had gotten his start in politics in
part, largely though the aegis of the Detroit Times' Hearst Oratorical
Competition and that he had recently competed speaking about Henry Clay. Henry
Clay was the subject of the competition and how ironic it was or coincidental
it was that Henry Clay had gotten his start in politics at the age of 23, and
here was this young man Brennan getting started at the age of 23, and he had
demonstrated his abilities, etc., etc., and his dedication to the American
tradition by his involvement in the oratorical competition which was what they
were trying to do with the college students, encourage them to get interested
in government and politics, and now he had proven that he had the practical
ability to translate all that academic into the real world and that they
predicted a bright future for this young man. Anyway, my mother saved that
editorial, and of course, I have it. It's around some place.
Mr. Lane:
Did it do you any good on November 5th?
Justice Brennan:
Well, of course it didn't, because you know, the Democrats were going to
elect all 21. Everybody knew that. Anybody with any sense knew that. I didn't
have any sense, and I thought that if I campaigned hard, I might win so I took
my vacation and I went out to the Ford Rouge Plant and stood out there and gave
my cards out to people and some of these union guys, the Polish and the
Tennessee rednecks and the blacks coming out saying, "What are you doing here?
You Republican? What are you doing here?". I'd just keep smiling and handing
out my cards and waiting it out. In any case, I ran fifth among the Republicans
in the run-off just as I had in the primary and all of the Republicans ran
behind all of the Democrats in the run-off as you can well imagine, so that was
my start. In 1952, my son Tom was born. I ran for the state legislature. I met
Dwight Eisenhower. Eisenhower was the inspiration really for me to get into
politics at that time, and...I shook his hand. It was one of those memorable
things for a young man, but I do remember being out with my brother campaigning
and putting my cards on the windshields of cars in the parking lot outside of
the Masonic Temple where they were having a big rally for Eisenhower, and he
was inside making a speech, and I was listening to him on the radio in the car,
and he said, "I will go to Korea", and I remember that statement and the
tremendous impact that it had on me as a young man liable to the draft and
perhaps to go there.
Mr. Lane:
That's where he made the declaration?
Justice Brennan:
That's where he made the declaration, at the Masonic Temple in
Detroit.
Justice Brennan:
That was the total content of the campaign. Oh, yes, and the
American people believed that if Dwight Eisenhower would go to Korea, this
thing was going to end, you know. He'd find a way to do it. It was a very
dramatic and visual way for him to state his objectives, and maybe had nothing
else in mind except that he was going to go over and see what this thing was
all about.
Mr. Lane:
You don't happen to know the political genius of that just by
chance?
Justice Brennan:
No, I don't know where that came from.
Justice Brennan:
That was a stroke of genius.
Justice Brennan:
Oh, yes, no question about it. He was like "Read my lips". So
anyway, I went on and graduated...
Justice Brennan discusses opening his own law practice, various unsuccessful political campaigns, his children; campaigning and being elected for Common Pleas Court.
Mr. Lane:
This is tape 2, and let's get on with the graduation.
Justice Brennan:
So anyway, I graduated from law school in 1952. I was then
working at the Burton Abstract and Title Company. I took the bar examination
that summer past and was admitted to the State Bar of Michigan in January,
1953. During 1953, I simply worked at the Burton Abstract and Title Company.
Polly and I bought a home on Silverlawn Street on the west side of Detroit. It
was an older home. It was owned by the Masonic Association because the widow
had deeded it to the Association, and she was being taken care of for the rest
of her life by them. I think I paid $9,800.00 for the house, had to borrow the
down payment from my employer, Burton Abstract, sold the car that we had that
Polly had inherited from her father and spent the next year or so going to the
store with a little red wagon to bring home our groceries. I remember waiting
for the bus in front of Sears and Roebuck Company in the rain and cold,
thinking to myself, "Any kind of a car, Lord, any kind of a car", and every car
that would go by, the worst old rattle-trap, that guy would be in his car going
to work and I'd be standing on the corner. Anyway, but we struggled, worked
hard on the house, painted and wallpapered and fixed up and that sort of thing.
Then in 1954, I ran for the state legislature again. This time, they had cut
the City of Detroit into districts, so I was running from a west-side district
where three candidates were to be elected, and again, I led the ticket with the
Republicans, among the Republicans, and the Republicans all lost to the
Democrats in the run-off. That was in 1954.
Mr. Lane:
Did you file by petition in that campaign?
Justice Brennan:
No, I think in that case, I filed $100.00 filing fee. In 1955,
early in 1955...well, late in 1954, I got a phone call from Bob Waldron whom I
didn't know but he told me that it had been suggested to him that he call me by
Art Bonk, a mutual friend.
Mr. Lane:
Bonk, B-o-n-k?
Justice Brennan:
B-o-n-k, and that Bob had recently been elected to the
legislature, had a small law office in downtown Detroit, was looking for an
associate and was I interested. It happened that I had a little bit of
business, law business of my own. Largely, one of my best clients was my wife's
uncle who had a piece of property that he had to foreclose on or something, and
I had a fee coming in from him on that, so I agreed with Bob to go into the law
practice. On the first of January, 1955, I started into the law practice, just
the two of us. We had a two-room office, one office for the lawyer and an outer
office for the secretary. Of course, we didn't have a secretary, and I sat
where the secretary would be whenever Bob was in town and when he wasn't in
town, I could sit at the lawyer's desk. We would have secretaries from other
law offices come in in the evening and do our typing for us and so on. That's
where we started out. We were there for a little while and then we moved over
to the First National Building where I had my own office which was a wonderful
thing, 1955, and I remember the first month in my law practice, I had been
making $325.00/month working for the law firm of Kenney, Radom and Rockwell
when I left at the end of 1954, and in my first month in the law practice, I
grossed $950.00. My expenses were $240.00 so I took home or grossed around
$700.00 which was twice what I had made working for Kenney, Radom and Rockwell.
I was ecstatic. I said, "How long has this been going on? Where have I been all
these years?"
Mr. Lane:
How do you spell Kenney, Radom and Rockwell?
Justice Brennan:
The owner of the firm was Mr. Frank E. Kenney, K-e-n-n-e-y.
Radom, R-a-d-o-m, and Rockwell, R-o-c-k-w-e-l-l. So anyway, the second month,
however, I only grossed about $270.00 and my expenses were $240.00 so that all
of a sudden, it didn't look so good, but we did all right and kept body and
soul together in 1955. Well then in 1956, my twins were born in March of 1956,
and I was still practicing law with Bob Waldron at the time. I think perhaps by
then, my brother Terry had come with us. He had been working for an insurance
company and I persuaded him to come into the law practice with us.
Mr. Lane:
He was a lawyer?
Justice Brennan:
He became a lawyer. He went to law school after I did. He was
older, but a little later getting started. Then came...okay, the twins were
born, Peggy and John were born in 1956. We were struggling. I had to give up my
home, the house we bought. Polly went to work teaching. That was before the
twins were born, and we rented an upper flat near Six Mile and Wyoming on
Cherrylawn Street. We lived in that two bedroom upper flat when the twins were
born so there we were with three children in a two bedroom upper flat. Then in
1957, I ran for Common Pleas Court Judge. Oh, I left something out. In 1954, I
ran for the state legislature. In 1955, I ran for the United States
Congress.
Mr. Lane:
16th District.
Justice Brennan:
In the old 16th District when John Dingell, Sr. died and his
son was a candidate for the Democratic nomination and was nominated by the
Democrats. John Dingell was 29 years old. This was not a special election.
Justice Brennan:
It was a special election. The election occurred in December,
1955, and I was 26 years old, and there was a newspaper strike during the
campaign, and as a matter of fact, I think John Dingell was elected with 19,000
votes and I had something like, I don't know, 5,000 or 6,000 votes or something
like that, but that was the whole thing. I could talk a lot about that
campaign, but for example, I was making somewhat of a fuss about the Emmet Till
case at that time which was a lynching case in the South, we're talking about.
I remember one of the things of my campaign was it's all right to have state's
rights but what about the state's responsibilities. For every right, there's
got to be an equal responsibility. I talked in terms of constitutional
amendments detailing state's responsibilities with respect to civil rights and
things of that kind. I was regarded by some people out in Grosse Pointe as a
communist and they referred to me as a communist or a communist leaning, pinko,
liberal character. As a matter of fact, one time when all the Republicans were
going to come into this special district and help work on the campaign, there
was a certain group of Republicans in Grosse Pointe telling people not to get
on the bus, literally were there physically urging people not to go on the bus.
So anyway, we lost. That was 1955. In 1956, the twins were born. In 1957, I ran
for Common Pleas Court Judge. I ran fifth in the primary. Elvin Davenport was
elected the judge.
Mr. Lane:
This was non-partisan.
Justice Brennan:
Non-partisan election.
Mr. Lane:
So when you were fifth, you were #5 on a...
Justice Brennan:
On a list of maybe 20 candidates or so that were running for
the job. Number one was Elvin Davenport, a black man, the governor's appointee
to the Common Pleas Court who was running to keep his position. Number two was
Charles Kaufman who was later elected Common Pleas Court judge, and I can't
recall...number three may have been Clarence Reid or Joe Maher and I think
maybe Reid was number four and I was number five. Reid had been Lieutenant
Governor and Joe Maher had run for judge a number of times, so I figured, well,
I'm making progress. You know, I've got a ways to go but I campaigned mostly in
my own neighborhood and did very well in the few precincts where I was able to
do a fair job of campaigning. In 1958, my son Billy was born. 1958 was a tough
year. My dad died. My son Billy was born, and my mother sold us the house on
Morley Avenue where I grew up after my dad died.
Mr. Lane:
Did your dad die suddenly or had he been sick?
Justice Brennan:
Yes, quite suddenly. He hadn't been ill, but he got pneumonia,
had a heart attack and died. In those days, that sort of thing happened rather
quick. He was a smoker, not in good physical shape, 58 years old. It was a blow
to me, it really was. Anyway, my mother sold us the house which was a blessing
because we were then three and about to be four children in this two bedroom
upper flat, and she sold us the house for $11,500.00 as I recall, and gave me
$1,000.00 towards the down payment. Out of Dad's insurance money, she gave each
of the five of us $1,000.00. Mine was by way of something on the down payment
toward the house. So a few months after my dad, or actually, Dad died in April.
My son Billy was born in June. We moved into the house in July. In 1959, I ran
for Common Pleas Court again, this time again I ran 5th, but there were four to
be elected, but the 4th slot was to be a replacement because somebody was not
running for re-election. I believe Judge Jeffries was too old to young...it
wasn't Jeffries, somebody else, Cartwright or Liddy or somebody.
Mr. Lane:
The people that listen to this tape should be informed that the
judicial elections in those times were in odd years, right?
Justice Brennan:
Yes, they were not only in odd years, they were in April. They
were in April of the odd numbered years, so I had run in April, 1957 and this
was April, 1959. The primary election would be in February and the run-off in
April so in February, 1959, I ran 5th behind Charles Kaufman and three
incumbent judges, and I was only a couple thousand votes behind Kaufman and
figured I could perhaps beat him in the run-off so we worked very hard, spent a
lot of money, borrowed money and everything else, and I lost, again...
Mr. Lane:
Quite closely...
Justice Brennan:
No, the margin was substantially broadened between Kaufman and
me in that run-off.
Mr. Lane:
But at any rate, you had the sense of progress at that point,
somewhere in there...
Justice Brennan:
I did, yes. I had a certain amount of encouragement, but I was
disappointed because I had gone past Clarence Reid and Joe Maher who...and Bob
DeMascio was also nominated that year. He was later a Federal judge, but in any
case, I lost to Charles Kaufman in 1959. I remember waking up in the hotel room
the next day and being very, very down and discouraged, being in debt and
having to go back and rebuild my life and my law practice and so on. In 1960,
my daughter Mary Beth was born and then in 1961, I ran for office again, and
this time I was elected. This time, I ran fourth out of four to be elected.
Mr. Lane:
This was for Common Pleas Court?
Justice Brennan:
This was for Common Pleas Court and so I was elected by
something like 500 or 600 votes over Andy Wood who was a long, well-known,
long-serving Detroit Traffic Court referee, and I was 31 years old.
Mr. Lane:
Was this the famous kids campaign?
Justice Brennan:
Kids campaign. We campaigned a lot using high school kids,
grade school kids.
Mr. Lane:
How did you recruit them? What was the appeal?
Justice Brennan:
The appeal came out of that whole parochial school system. I
was raised by the nuns and taught by the priests and so on, and we went to the
parochial schools. We organized the city by parishes. Oh, yes. There were no
precincts. It was parishes, and you got a committee in every parish, and we
would go into, sometimes go into a Catholic school and teach the kids some
Civics and so forth and then before we were through, the nuns would be passing
out our postcards and the kids would be addressing them for us, and we'd walk
out of the school room with several hundred postcards all addressed, so we did
a lot of that. We did a lot of direct mail work with brochures and so on. I
also had billboards. I remember the great billboard episode. One of them
was...there was an old Democrat from the east side of Detroit named Burt Donlin
and Burt had...
Mr. Lane:
How do you spell Donlin?
Justice Brennan:
D-o-n-l-i-n, and Burt had suggested to me that what I needed to
do was to make hay with the fact that Brennan was a judicial name, so he had
suggested to me that I have, and since I had run before and I had supporters
already in the community, this was a legitimate thing for me to put on my
billboard..."Keep supporting for your Common Pleas Judge Thomas E. Brennan", so
the three words that when you were coming down quickly in your car was "Keep
Judge Brennan", okay, but the full message was "Keep Supporting for your Common
Pleas Judge Thomas E. Brennan". Well, I thought, gee, that sounds pretty good,
so we bought the billboards, and we hung them up and so forth and old Judge
Cartwright who was one of the candidates who was an incumbent judge was going
home on the bus and he saw this billboard, and he just went into a rage, called
the Bar Association and the Ethics Committee and we suddenly had the phones
ringing off the walls. Louie Rockwell who was a partner in Kenney, Radom and
Rockwell was my campaign finance chairman, and a good man and a good counselor.
I remember him with this crisis meeting we were having around the table, and
Louie saying that we were going to have to take the billboards down and me
saying, "They cost us too much money. We'll never be able to raise the money",
and he insisting that we'd somehow finding the money to re-do the billboards,
so in fact, we did. We re-did the billboards, and what it basically did was it
said, "Thomas E. Brennan for Common Pleas Judge" so from a distance, it changed
the message from "Keep Judge Brennan", to "Brennan Judge". That was the main
push, but at least it was a legitimate billboard. They couldn't stop us from
doing that, but I remember that. It was also the campaign in which, toward the
end,...I think it was perhaps in the primary because it was very cold weather.
I had a group of fellows from the Polish Legion of American Veterans, Post #4,
the Abraham Lincoln post down on the west side of Detroit near Michigan Avenue,
and they were great supporters of mine, and we got a bunch of hard hats,
construction hard hats, and we made these signs on maybe seven or ten foot
poles, and the signs themselves were, I'm going to say, 2 x 2 squares, 24" x
24" squares, and each square had one letter of my name in it. We were using the
papers left over from the billboards, okay, and so there were seven of them,
and they spelled out the name "Brennan" and on the back of those signs spelled
out the word "Judge", and I guess one of them said in small letters "for", and
then there was a blank, and "Judge", so there were seven billboards as well on
the back, so these fellows would march in a row, single file, and as they
carried the signs, it read "Brennan", and on signal, they would twist the signs
in their hands, and it would change like a walking venetian blind, it would
change and say "for Judge", "Brennan" "for Judge", "Brennan" "for Judge", so
that was great. We then took this little entourage to the freeway going
downtown Detroit and the pedestrian overpass down near the Herman Kiefer
Hospital...Ford Hospital and that area near the Boulevard, and there was one
great stretch there where there was this pedestrian overpass that probably 3/4
of a mile with straight away with no bridges or overpasses to interrupt you
where you could see this pedestrian overpass coming up, and at a strategic time
at about 7:00 a.m. on a busy work day, we got this little army of hard-hatted
Polish veterans to march back and forth over the freeway with the signs,
twisting in their hands on command to read "Brennan" "for judge", "Brennan"
"for judge". Well, the result of it was as the motorists approached the
overpass, they were curious of this doing up on the overpass, and they would
tend to slow their vehicles down and look up through their windshields to see
what was happening. If you can imagine on a busy weekday morning, the traffic
which normally goes through there at 50 miles/hour is now going through at
about 25 miles/hour and they're backed up from the Ford Hospital at Grand
Boulevard all the way out to Eight Mile Road, and it is a massive traffic jam.
In due course, a police officer arrived on his motorcycle and tells us to get
off of there, "Get off that overpass. What are you doing up there?", and Dick
Maher, my campaign manager and law partner and I are there to tell the officer
that our friends are merely exercising their constitutional rights, and they
will not get off the overpass. He huffed and blustered a little bit but of
course, we told him we were lawyers, and he wasn't going to bother us. Very
shortly, the squad car shows up and after that, the sergeant shows up. After
that, the lieutenant shows up from the station and "What's going on here?", and
all the same story we go through. Well, in due course, channel 4 showed up or
channel 7, whoever, and they got the T.V. pictures of these guys walking over
the overpass and so forth and the sign changing from "Brennan", to "for judge".
Well, once that happened, we were ready to come off the overpass and let the
traffic go. They hauled us in to the station and gave us a lecture. In the
meantime, they had lawyers downtown trying to figure out what we were doing
that was wrong, and they had nothing to charge us with so they let it go, so
that, of course, hit the news that night, hit the newspapers, attracted a lot
of attention from a lot of different people.
Mr. Lane:
This was 1961?
Justice Brennan:
This was 1961.
Mr. Lane:
Now, who conceived the idea or was it just a lucky hit that
somebody said, "Well, why don't we try this?", and then it really worked.
Justice Brennan:
Well, it was my idea, you know, but I...and I didn't have the
scenario in mind that we were going to...I didn't think we were going to hold
up traffic. I hoped that somebody would notice, you know, and it certainly
didn't occur to me that we were going to have police and T.V. cameras there,
but once the thing got going, I said, "Hey, this is going to be all right". I
began realizing that we were creating a stir, so in any case, that was that
story.
Mr. Lane:
Did that help a lot?
Justice Brennan:
I don't know.
Mr. Lane:
This was a state-wide...
Justice Brennan:
A city-wide campaign. You're talking about, in Detroit in those
days, was 1,800,000; nearly 2 million people, and we got in the neighborhood of
60,000 votes in February, well in March. I think in February, we were talking
20,000 or 15,000 votes would be a good vote.
Mr. Lane:
In those days, you got a lot more newspaper exposure, too,
would you not? Would you get the same thing today?
Justice Brennan:
I think so. Probably. In any case, that was my first winning
campaign, and it was a very close race. But then...I was elected in April, but
I wasn't sworn in until December and took office the first of January the
following year, so I had a long incubation period during which, I cranked down
my law practice. I got involved in the election of Jim Brickley for the City
Council, worked on his campaign.
Mr. Lane:
Was it your idea to develop the billboards made out of bricks
to emphasize the Brickley part?
Justice Brennan:
Yes, that's right. I had a kind of a flare for public relations
and that sort of thing, and as a matter of fact, I wrote a whole design for his
campaign, why he would be elected, how it was to be done, what the theme of the
campaign was and etc., etc.
Mr. Lane:
Do I recall that during this period, the Brinkley-Huntley news
team was in much focus and that the Brinkley part of this turned out to be a
very...
Justice Brennan:
People kept calling him "Brinkley" because Brinkley was on the
T.V. so then...Jim and his wife and Polly and I went up to Jim's father's
cottage at Higgins Lake after the primary election. He had won in the primary
and it was just kind of a crank down thing and a brainstorming session and I
remember the three of them were all napping one afternoon and I was sitting at
the kitchen table, laboriously drawing up the name "Brickley" made out of
bricks, and I liked it the way it looked. Ultimately, we used that for the
billboards, and we used it for bumper stickers and in addition to the name
"Brickley" in red bricks, the phrase underneath it was "is the new man for
Council", and the "new man" became his theme. That was an interesting thing and
at the same time, I was involved in managing a campaign for two Republican
candidates to the Constitutional Convention of 1963 which was being elected
that very same summer. I managed the campaign of a fellow named Bill Cudlip who
was a principle member of the firm of Dickensen, Wright, and he had a pretty
easy time. He was being elected from Bob Waldron's Grosse Pointe district.
Mr. Lane:
He also was pretty well-known, was he not?
Justice Brennan:
And pretty well-known, but the one who had the tough campaign
that I was very pleased with having engineered a win for him was Rockwell T.
Gust, Jr. because Rocky Gus was a candidate in a district which had always been
held by the Democrats, and so we managed to get a victory for him, and that was
quite an accomplishment.
Mr. Lane:
Would this have been in 1961?
Justice Brennan:
Yes, 1961, and in that same year, Jerry Cavanagh was being
elected mayor of Detroit, and he was elected in the fall, in the fall municipal
election.
Mr. Lane:
You just must have had an extraordinary zeal and taste for this
kind of political activity. You just loved to...
Justice Brennan:
Well, I loved it, but you have to understand, Roger, that I
didn't have a lot of other options. I mean, what were my assets? I was an Irish
kid from the west side of Detroit. I didn't know any lawyers. I didn't
have...nobody in my family that was in business. I knew no one in particular
that would be a client, you know, a business client or anything like that. I
suppose I could go out and chase ambulances or whatever it is and try to get
cases, but in terms of getting business, there was no way for me to get
business except to be out and about in the community, you know, and be
active.
Mr. Lane:
This was an inviting role to progression...
Justice Brennan:
To get to be known, yes. It was one of the ways you could go to
get to be known would be to get involved in politics.
Mr. Lane:
I was talking to Otis Smith, and he said in his childhood, the
slogan was "Be somebody".
Justice Brennan:
Yes, and that's sort of what this was all about, although oddly
enough from the law practice standpoint, it took away from your law practice.
You didn't have the time to be with it. You always had people coming in wanting
to have you represent them in drunk driving cases because they helped you in
your campaign. It was a quid pro quo, you know..."I'll work for you in your
campaign or I'll give to your campaign in exchange for you being my lawyer",
you know, so it was a very difficult thing to be a successful lawyer. My
brother stuck to the last as far as the law practice is concerned, and did
very, very well, and he often had admonished me and said, "Why don't you give
up this crazy politics thing and be a lawyer, concentrate on being a good
lawyer?", and I can remember before that 1961 campaign one time stopping in a
church one night when I was agonizing over the decision as to whether to run
again after I had been defeated five times, and praying in the back of church,
"Lord, either let me win or take this [expletive] ambition out of my head, because
I'm ruining my family, my finances and everything else", and my wife was
absolutely torn up with the thing. In any case, we did win and that made a
difference, although I remember going out the week after I was elected, going
to the bank. My banker relative Emmett Sullivan, and borrowing $12,500.00 to
pay off debts from the campaign which will give you some kind of an idea
representative of 2/3's of the salary of the job. The job paid $18,000 and I
borrowed $12,500 to pay off the bills.
Mr. Lane:
In those days, did you have to clear up your debts within so
many days after the electoral, date of election? Like is now the case, is it
not?
Justice Brennan:
I'm not aware of it, and quite frankly, I think clearing up the
debts even today is largely a matter of paper shuffling. I'm sure...
Mr. Lane:
Remember what happened to Alice Gilbert?
Justice Brennan:
No.
Mr. Lane:
You don't. Well, anyway, she ran a campaign...maybe it was
Supreme Court. Wasn't it Supreme Court? Didn't she run one time?
Justice Brennan:
Yes, she did.
Mr. Lane:
And she apparently couldn't account for all the money that she
spent, and she...somebody rubbed under her nose the provision in the canons
that say that within such and such a period of time, you've got to pay your
debts or you cannot accept contributions.
Mr. Brennan discusses his experiences in practicing law as preparing him for being a judge and a court case illustrative of injustices in the legal system at that time.
Justice Brennan:
Oh, yes.
Mr. Lane:
So she went down to the bank and she got a $72,000.00...how did
she pay it off, and she had a real problem.
Justice Brennan:
It was the same way then. The campaign was over, and I don't
know that there was any rule that we couldn't have a fundraiser, but as far as
I knew, nobody ever had a fundraiser after an election other than maybe within
a week after the election, you know, a victory party, and you tried to raise
money then, but that would be it, so basically, I had to bite the bullet. I
went out and borrowed what amounted to 2/3's of the salary. It would be like a
fellow elected today to the Supreme Court which pays $100,000 and going out and
borrowing $66,000 to pay off his campaign. Anyway, we went from there, and
remember at that time, I had five children. So now it is 1961, and I win the
election. In 1962, I was a Common Pleas Court judge. In 1963, Governor Romney
appointed me to the Circuit Court. In 1964, I ran for the full term as Circuit
Court judge. In the meantime, and that was one of the only windows in the whole
history of the state, I did not have a designation as an incumbent though I was
an incumbent. Because of the constitution of 1963 which took the incumbency
designation away from appointed judges, I did not have a designation. Charlie
Kaufman who was still a Common Pleas Court judge made the statement that he was
going to run for Circuit Court against Brennan and he was quoted in the paper
as saying, "I beat him before, and I'll beat him again". That challenge kind of
got my Irish up and anyway, that was a great campaign in 1964 but I led the
ticket and I defeated Kaufman.
Mr. Lane:
How did you take to being a judge? You know, here you go in and
some guy fits you with a robe for the first time. Do you remember what the
sensation was? People coming up in front of you...
Justice Brennan:
First of all, I took to it very well. I took to the profession
well for a lot of reasons, I think, and I think a lot of it had to do with my
upbringing and my education. The people who taught me and for whom I had great
admiration and respect all wore robes. They were nuns and priests. They were
the hierarchy of life, you know, in that sense. Ceremony was something I grew
up with, religious ceremony - I was an altar boy, you know, so the idea of
ceremony was something I was comfortable with and understood, and of course, I
was a lawyer and had practiced in the courts so I was very familiar with what
happened in the courts and spent a lot of time in the courtrooms. No, I felt
very comfortable with it right from the get go.
Mr. Lane:
On Common Pleas, what was the normal diet of a day on the
bench?
Justice Brennan:
Well, Common Pleas Court was basically a Civil Court with
jurisdiction up to $10,000. It may have been $3,000 originally but it got to
$10,000. I think it is $20,000 today, I could be wrong.
Mr. Lane:
A lot of replevin and that sort of thing?
Justice Brennan:
Replevin, basically but the typical thing would be a debt, a
business debt, a consumer debt, and one of the things we used to...when I was
at Kenney, Radom, Rockwell, the firm did a lot of collection work. That was
their big thing and one of our jokes was that the typical defense of a business
defendant was "I never ordered the merchandise. It was never delivered. It
wasn't what I wanted and besides, it was defective". There were a lot of
routine cases. Every morning at 9:30, Joe Kopecky would have a huge room full
of people.
Mr. Lane:
He was the clerk, was he?
Justice Brennan:
When I was a young lawyer, and later Pais Getcho was the clerk,
and I can't recall who came after him, the assignment clerk. The Clerk of the
Court was a man named Ed Hackenjos who was a shirt-tail relative of mine.
Mr. Lane:
Ed...?
Justice Brennan:
Ed Hackenjos, H-a-c-k-e-n-j-o-s. His sister Rhea, married by
uncle, Pat Brennan. He was a wonderful man. He was a public servant of the old
guard, started out as a young boy working as a clerk and writing down
everything he learned about the way the court operated and everything the
judges told him and every statute he would check and learn about and so on, and
it was all carefully filed in his little black books which he still had when I
met him. That little brown book up on the shelf he gave me is the procedures of
the old Detroit J.P. Court, I believe, which was the forerunner of the Common
Pleas Court. He knew the history of the Common Pleas Court. He could tell you
of the election of the judges and had all that stuff recorded in his little
book. Wonderful, wonderful public servant. Anyway, so I had people in the court
to help me get started as a judge, and I had my own ideas about how a judge
ought to operate, because I had been a young lawyer before the judges, and I
suffered some the indignities of being put down by the judges. There were many
instances that I still think were horrible examples of judicial conduct,
arbitrary conduct by judges. I remember a case where one of the old judges,
Ralph Liddy who was kind of a character. It was rumored that when he performed
weddings that people paid him $10.00 for the wedding that he would take the
money and wash it off with soap and water because it was dirty. He didn't want
to handle it.
Mr. Lane:
L-i-d-d-y?
Justice Brennan:
L-i-d-d-y. He had printed up a little thing that was Judge
Liddy's ruler, and it was actually a ruler, but in addition to the inches and
so forth on the ruler was Judge Liddy's formula for stopping time of a vehicle,
and based on vision and distance and speed and reaction time and etc., etc., he
had this mathematical formula that we were supposed to know and be aware of and
so on, and he loved to pontificate about his formula and use it wherever he
could to decide cases. He was an extremely arbitrary man. There was...at one
time when I was practicing, I representing a doctor, my own personal physician,
Jack Ronayne, who was owed a bill by a man in Highland Park, and the fellow
wouldn't pay him and finally the doctor said, "I'm going to sue him. I think he
should pay it", so I sued him. A lawyer came in and represented him, Maurice
Cherry, I think his name was, who had a withered arm, and he represented the
patient, and I think the bill was $80.00. It wasn't worth the trouble to sue or
certainly the trouble to have the doctor come down and yet the money was owed,
so I used the Court rule for summary judgment and I prepared a motion for
summary judgment and had the doctor sign an affidavit that he really performed
the services and that if called to testify, he would say so and so on, and that
the bill was reasonable and the amount of it that hadn't been paid. I followed
the court rule and I filed the motion. Maurice Cherry on behalf of his client
did not file an affidavit of merit as the Court rule required and so on motion
day, I went to Judge Liddy, and of course, you didn't argue motions in open
court in Common Pleas. They were all decided on the paper work back in the
judge's office, but I went in to try to get to see him because the Clerk came
out with the file stamped that the motion was denied, and then I tried to get
into see him. "Why had he denied it? How could he deny the motion? We followed
the Court rule." He wouldn't tell me. He wouldn't talk to me about it. He
wouldn't respond, but he denied the motion and awarded $10.00 or $20.00 cost to
the defendant. Well, that meant the case had to come down for trial. So I
called the doctor. I was so mad. You know, the system wasn't working, and it
was made to do that for this very purpose. He said he would come to court. He
was as mad as I was, and he agreed to come to court, take off from his busy
practice and so he did. The case was assigned to old Judge Tom Kenney who is a
nice old guy appointed by Harry Kelly, the governor, as a mater of fact, had
been Harry Kelly's legal advisor. I later, when I served with Harry Kelly on
the Michigan Supreme Court, told me that he called Tom Kenney in and he said,
"Tom, I want to appoint you Common Pleas Court judge, but I've got to have one
promise from you". "Anything you want, governor". "You'll never touch another
drop to drink as long as you live", and he said, "You've got it". He made the
promise, became a Common Pleas Court judge and never walked into his office any
day in the morning without looking towards heaven and thanking God and Harry
Kelly. He was a happy man. He loved his job, and he was a nice man. He was a
kindly man, and he was a good judge but he was, like the others, kind of
arbitrary, very arbitrary, mostly because kind of rules of thumb that he had
developed through the years as being a judge, so I'll tell you the story. We're
now assigned to Judge Kenney. I've got my client with me. Maurice Cherry is
there. He doesn't have his client with him. The case is called and goes to Tom
Kenney. It's about to start and Cherry stands up and says, "Your Honor, before
we begin, the counsel made a motion for summary judgment before Judge Liddy
that was denied and Judge Liddy awarded my $10.00 in costs and the costs have
not been paid. I don't think that I should be forced to defend this case until
counsel and the plaintiff pay me my costs". Kenney says, "Pay him his costs.
I'm not going to hear this case unless you pay him his costs". I said, "Your
Honor, I should have won that motion, and we're about to try the case, and it's
going to prove that I should have won the motion because he doesn't even have a
witness with him". "Pay him the costs or I'm not going to hear the case". I
took out my checkbook, and I wrote a check for $10.00 to Maurice Cherry and I
handed it to him right there in open court. We then proceeded to put my client
on the witness stand. He testified that the bill was owing and had never been
paid, that the services were performed. Cherry gets up and he says, "Doctor,
when you were called to this man's house, was he conscious or unconscious". He
said, "He was unconscious. He'd had a heart attack". "What did you do?". He
said, "I examined him and called the hospital and had him admitted as a heart
patient." "Then what did you do?" "Well, nothing. I saw him in the hospital one
time and then I was relieved of the case because the family doctor got there to
take over. I was just on emergency duty". "Well, did you ever talk to the man?"
"No, I never talked to the man. I never saw him awake, never talked to him".
"So you never made a contract with him for services?" "No, I didn't. The judge
said, "Wait a minute...
Justice Brennan continues talking about the court case from Side A. He also talks about being appointed to the Circuit Court by Governor Romney in 1963, instituting an "anniversary system" to handle cases in his court room, and other issues of judicial administration and credibility.
Justice Brennan:
The judge said, Kenney said, "Well, that's no defense. There's
an implied contract. The man is sick with a heart attack and a doctor is
called. There is an implied contract for medical services. Is that all the
defense you've got, Counsel?" "That's all I've got". "Well, I am going to award
judgment for the Plaintiff, $5.00 cost". I'm on my feet - "Your Honor, I just
paid the guy $10.00 in cost for the motion". "Oh, that was the motion. You lost
the motion but you won the trial". I said, "I can't win the trial and lose the
motion because the motion was that there shouldn't even have been a trial
because there is no defense". "That's right. There's no defense and you win.
That's all. Judgment for the plaintiff", and he starts off the bench. I said,
"Your Honor, can I make a motion?" He says, "You can do anything you want", so
I rushed back to my office. I got out the statute. The statute says among other
things that if a motion for summary judgment be made and denied on the basis of
an affidavit of merit even, and it should then appear at the trial that the
motion should have been granted because in fact, there was no defense, then not
only should the plaintiff have judgment but he shall have treble costs as a
discipline for the improper affidavit of merits having been filed. So I
prepared my motion, I want treble costs. I go back and file it with Kenney and
show him the statute in the court rule and so forth that entitles me to it. He
said, "You're not going to get that from me. If you want to take it up to the
Circuit Court, they read all those books and they do all that law stuff up
there. I just make decision about people's cases, between the good guys and bad
guys, that's all I do. We don't do those fancy things in my courtroom." That
was the way it came down. Well, I went back to the office and of course, the
only thing I could do. We were never going to collect a dime of this $80.00
from this deadbeat anyway, but I called the bank and stopped payment on the
check, so I at least saved the $10.00, and at this time, I was working for
Kenney, Radom and Rockwell. In due course of time, Mr. Kenney himself came into
my office a month later, and he said, "You stopped payment on a check you gave
to a lawyer in open court?" I said, "I sure did". He said, "You can't do that.
That's unethical". I said, "The hell it is. What's unethical is this lying son
of a [expletive] that comes into court and defends when he hasn't got a defense and
doesn't file an affidavit of merits when the court rule requires him to do so
and then insists that he won't go forward until I pay the costs that he is not
entitled to." "Well, I never heard of such a thing, stopping payment on a check
to another lawyer". I said, "Well, sue me". I understood years later that old
man Kenney made up the $10.00 to this guy Maurice Cherry, but they never got it
out of me. Anyway, I tell you this story because a young lawyer, the
perspective of a young lawyer in a busy court like that was that there was a
lot of injustice, and there was. The game wasn't being played by the books. It
was being played by the guts of these old timers who by and large, administered
pretty decent level of visceral justice. It was self-government in its raw
form. It worked. These people were being re-elected year after year. They were
popular. They had the prestige of being judges. They did get the cases decided
and moved the docket, cleared out the assignment clerk's room full of people
every morning, but it was very unsatisfying to a young lawyer who thought that
the thing should have been played the way he learned it in law school. One of
the things that I decided was that when I got to be a judge, I was always going
to make a statement from the bench about what caused me to make the decision
that I made one way or the other, and...
Mr. Lane:
As the constitution requires you to do if you're a Supreme
Court justice?
Justice Brennan:
That's right. I'll just finished that little observation with
the thought that I learned later that I was appealed more than any other judge
of the Common Pleas Court during the two years that I was there. I wasn't
reversed, but I was appealed, and I came to realize that the reason I was being
appealed was because I gave so much explanation as to what I was doing and why
that I gave people a lot of things to shoot at, that the other older judges,
more-experienced judges realized was not a good idea, at least they didn't
think so. If you just said, "Judgment for the plaintiff", it was sort of a like
an umpire in a game saying "safe" or "out" or whatever. Anyway, or a jury
verdict which gives you nothing to quarrel with, but when the judge tells you
why he felt this way and that way, you want to argue him out of his position.
Anyway, moving along...Romney appointed me to the Circuit Court. I ran for that
job. I served a couple years on the Circuit bench.
Mr. Lane:
Did you find that a lot more challenging?
Justice Brennan:
Yes, I liked that work. Circuit Court judge is the highest nisi
prius court in the land, and you get all kinds of cases at the factual level. I
took some interest in administration when I was on the Circuit Court, and we
went through a time when the Supreme Court ordered us to divide up our docket.
The Circuit Court in Wayne County had a common docket where all the cases were
simply assigned to the first judge who was available as they were ready for
trial, and the big quarrel was should we have the individual assignment system.
Well, we didn't want it, but the Supreme Court wanted us to do it, and finally
they ordered us to do it. So I undertook...I did a couple things in connection
with that. The first reaction that our judges had was "well, it's going to take
six months to a year to take all the cases in the court and divide them up
among the twenty judges". They had some idea that there was going to be some
sort of bureaucrat who would examine each file and say, "This one goes to Judge
so-and-so. This one goes to Judge so-and-so". Finally, at one of the judges'
meetings, I said, "Look, why don't we simply use the case numbers to divide the
cases. It will all come out in the wash statistically. We are all going to get
1,000 or 1,500 cases, so you'll get your fair share of divorce and your fair
share of personal injury cases and so on. It might be off by one or two, but
who cares? It will all come out". "Well, how can you do that?". I said, "Well,
obviously, you've got twenty judges and you've got only ten digits, so you
can't say everybody takes all the cases that end in 1 or 2 or 3, but the code
very simply is you take the last two digits, and if the case number ends in an
even number and then a two, it goes to Judge so-and-so, even number and a
three, it goes to Judge so-and-so. If it an odd number and a two, then it is
so-and-so". A very simple twenty digit system, and oh, my, you'd have thought I
invented the IBM computer, you know. These people..."Oh, what a wonderful
idea", so we published a notice in the Legal News that this was the scheme and
within a week, we had divided the cases among all the judges. I took my 1,500
or so cases and I told the clerk to go get them. I wanted to see the files. I
wanted to see what 1,500 case docket looks like.
Mr. Lane:
You mean to bring the record into a certain room?
Justice Brennan:
Yes, bring them all up to me.
Mr. Lane:
Of course, the records were smaller, I guess.
Justice Brennan:
It's like a file. You know, 1,500 files is a pile. I don't
think I had all 1,500 at one time, but I had them come up by hundreds or two
hundreds and I went through them. I shortly discovered that the cases were in
all states or preparation. There were a vast number of them where the file
showed nothing except that the case had been started and a year or more had
gone by and nothing had happened at all, and there was nothing in the file to
indicate what might be happening or have happened. So I decided upon a system,
and I have always had a great interest in systems, and tend to think in terms
of systems, and my system was that I wanted to get every case up for trial
within a year of the day the case was started. So I devised what I call the
"anniversary system", and the anniversary system very simply said that every
case on my docket would be set for trial one year from the date on which the
case was started, and two years and three years and four years from the date on
which the case was started. In other words, every year on the anniversary of
commencement of that law suit, the case would be set for trial if it hadn't yet
been disposed of. Now, what did that mean? Well, it meant that every day of the
year with 1,500 cases, there were probably 200 to 220 working days of the year,
I had probably seven or eight. Let's see, 200 x 10 would be 2,000, so it wasn't
10, but it was probably seven cases set for trial.
Mr. Lane:
Actually notice went to the attorneys?
Justice Brennan:
Oh, yes. They were informed - "Your case is set for Tuesday,
October 3rd. Your case is set for Tuesday, October 3rd". Both sides were
informed, and so when Tuesday morning dawned, I have seven cases. Of those
seven cases, four of them are on their first anniversary. One of them is on the
second anniversary or whatever, and let's say most of the one year cases - none
of them are ready for trial. The two year case is ready to go to trial. It is
just about right, you know, they're really ready, there's starting to get a
little antsy. The three year case has been ready for trial for a long time, but
there's problems on it. The four year case isn't ready for trial at all. The
preparation hasn't been done. There are serious problems in terms of proof or
the lawyers are incompetent or the lawyers are kicking the gong around for one
reason or another, and there are problems on the case, or maybe there is a five
year old case, and it is really ripe and over-ripe to go to trial, you know. So
starting with the oldest case, call the cases. You start with the five year old
case, and I am now struggling with the most difficult problem of all. This case
has been five years trying to come to trial. What am I going to do with it? I
try to settle it, and I jawbone the people and everything else, threaten to
dismiss if they don't go ahead. Maybe I set it for trial and actually start
trying the case or threaten to try the case, but surprisingly, the reality of
today's doomsday, oftentimes, I'd get rid of that case, and then by 10:30 a.m.,
I'd go back out to the lawyers and say that I'm ready for the next case. That's
the four year old case. In the meantime, people who've got the younger cases
are saying, "Well, he's never going to get to us. What can we do? We'd like an
adjournment. Can we get a week adjournment, two week adjournment, month
adjournment?" The clerk is well-instructed by the judge that he says,
"Gentlemen, any of you can have an adjournment right now. We're not going to
reach you, but the adjournment will be for one year until the next
anniversary". "Oh, my God, you can't do that. I can't wait that long". "Well,
we're sorry. Every case on the docket gets its day in court, and its day is the
anniversary. That's the only day you get is the anniversary day, and that's the
day you get the judge's attention. Other than that, we can't book it because we
have seven other cases on any given day you want to mention". Well, a
surprising number of cases then would be settled because nobody wanted a one
year adjournment and it sometimes put the ball in the other court depending on
who was benefitted by delay and who was hurt by delay. The system, I thought,
worked fairly well. I wish I had been able to stay with it long enough to
really work out all the kinks and see if it couldn't be made to work.
Unfortunately, about two months or so into the system, I suddenly had a case
that was ready for trial, both sides ready for trial and it was a three or four
year old case, and we started trying it. We tried that case for six or seven
weeks, and every day for six or seven weeks, I had seven sets of lawyers in my
courtroom in the morning saying, "We're here. It's our anniversary day". "The
judge is trying a case". "When is he going to be through?" "Don't know. It will
be a couple weeks at least." "Well, okay, you mean we'll be ready in two weeks
when he is finished with the trial?" "No, because the judge is busy and can't
take the case, the only thing we can do is adjourn your case for a year until
the next anniversary day". "My God, the case is three years old. You mean I'm
going to be four years?" "Yep, you're going to be four years old." "I can't..."
"I'm sorry. There's nothing we can do. The system doesn't allow it." Some
people would settle, but then some people started raising sand with the Supreme
Court and everything about this guy has this crazy one year system and its
causing all kinds of problems and everything else. So eventually, realizing
that it was difficult for me to keep up when I had...there was nothing you
could do with a big law suit, I changed the system and sort of got into the
mold with everybody else, but it was an experiment in judicial administration
which I have not forgotten and I think better than a lot of other things, it
demonstrates the real problem of judicial administration and that is that the
system, our system of administration of justice is physically unable to try and
settle, adjudicate, settle by adjudication, determine by adjudication all of
the disputes that are brought to us. We are physically economically unable to
adjudicate more than probably 5%, 1 out of 20 of the cases that come to court,
but the strange Catch 22 of the thing is that we're only going to be able to
get voluntarily settled those cases where we present to the parties the
apparent ability to adjudicate. If you have the apparent ability to adjudicate
and willingness, you can force settlement. If you do not have the apparent
willingness and ability to adjudicate, settlement doesn't come because one side
or the other is not being brought to the table, and they have tried everything
imaginable to create artificial doomsday, to create artificial last moment to
settle voluntarily before the axe falls, and they can't do it because everybody
knows the axe isn't going to fall. The system can't try more than 5% of the
cases, so I remember I used to laugh about Horace Gilmore who is now the
Federal Judge down in Detroit when he was a Circuit Court judge, one of my
colleagues on the Circuit bench, and Horace used to say when he would be
laboring to try to get the parties to settle a law suit, and he would finally
say in exasperation, "That's it, gentleman". He would pull on his robe and say,
"We're going to have a final pre-trial". The worse thing you could threaten
them with was a final pre-trial conference. It sort of reminded me of the old
joke about the guy, the debtor who came whistling down the stairs and his
friend said, "What are you smiling about?", and he said, "Well, I owed this
money to the credit card company, and I'm glad I've heard the last of them". He
said, "You paid them off?" He said, "No, but I got my final notice today".
Anyway, ...
In 1966 he was nominated for the Supreme Court and he discusses the election process for Supreme Court justices, the myth of non-partisanship, and the nature of democracy.
Mr. Lane:
Can you distill out of it?
Justice Brennan:
Yes, I can distill out of it because when I was Chief Justice,
there was a rumble out in Oakland County and a bunch of motorcycle type guys
got into some big rhubarb, and I forget what it was, but it was a real affront
to the peace and good order of the community, and they were all arrested and
charged with misdemeanors, and I forget what the misdemeanor was, whether it
was noise or something, whatever, traffic or something and so they hauled in
these 200 or 300 young people, and they were ruffians and they were high
spirited young folks, shall we say. I think they may have been using marijuana
or something. I forget what the gravamen of their defense was but a young
lawyer of their acquaintance and of their disposition, apparently, got himself
involved and began representing these people one after another and demanding
jury trials, and the message...the story was in the newspaper and the message
got to me here in Lansing that these people were demanding jury trials, and the
lawyer was bragging that it would be three years before these people were all
brought to trial. They were just laughing at the fact that there was
never...really, nothing was going to come of all this. Of course, that brought
the whole judicial system into disrepute, and it was an affront to our capacity
to govern ourselves, and so as Chief Justice, I ordered the Court Administrator
to get on the telephone and round up every District Court judge he could round
up within so many counties, and every courtroom that was available, and if need
be, get high school gymnasiums. I want to be able to try 200 cases in Oakland
County in the next three weeks, jury trials, and we'll get citizens by the bus
load to sit as jurors and everything else, but we will try those cases en
masse, not en masse but on time and immediately. Everybody gets a speedy trial,
and the system is going to be able to handle it. The whole problem went away
just like that. We showed the flag, we showed them that we had the capacity and
the will to try the cases, and suddenly, they were all settled. They all pled
guilty, paid their fines and it was over, but the lesson learned was that the
judicial system lives on credibility. If you haven't...and in order to have the
credibility, you sometimes have to marshall the forces and do extraordinary
things, but if you're willing to do that and capable of doing that, most of the
time, you won't ever have to do it. The credibility is there and things roll
on. Anyway, that was the lesson.
Mr. Lane:
As far, though, as being able by a scheduling technique to work
off cases otherwise that were stagnating, and these are, you know...I'm
characterizing this in a certain way...was there, for example...even though you
didn't get to follow this thing through and make the various adjustments that
perhaps you would have, was there some essential lesson beyond...as to the
technique itself, how it might have been adapted? For example, within so many
days after discovery begins or something like that, then you start your
timetable running, you know...?
Justice Brennan:
No, I never distilled, Roger, any sort of conclusory principle
out of the thing. I established that based on certain predilections that I have
and assumptions, theories that I have which to my knowledge, have never
been...are not being tried or used and haven't been, but my sense of it is that
the only deadline that ever counts is the trial day. I believe, and I have
believed for a long time, and now people are beginning to come to the view, but
I have believed for a long time that our modern pre-trial, what we now call
lawyering before trial process, is counter- productive, counter-productive for
justice, certainly counter-productive for speedy justice, and
counter-productive of affordable justice by a long shot. It really makes...it
really introduces an element of gamesmanship into the litigation process so
that...lawyers talk about papering the other side to death, you know, and
motions and demands and all...all of these things were designed in the 1930's
by so-called forward looking liberals whose concept of the system was that
somehow it could be made utopian, and that we could have a perfect system of
investigatory justice where the judge and lawyers on both sides were all
engaged in a common search for the truth and we could take surprise out of the
trial, and we could take...we could have better preparation by the lawyers and
better...etc.,etc. I could have told you that as many lawyers did, knew that
surprise is a great strategic technique. It is also a great insurer of truth.
You catch people in a lie, you trap them in a lie, and you prove who is telling
the truth and who isn't sometimes with surprise, it will do that for you. That
the process of preparing the lawyers is also a process of preparing the
witnesses, getting them to rehearse their stories and getting them to recite
their stories in certain words and so on so that it becomes artificial,
concocted, if you will.
Mr. Lane:
Is there anything to be learned from the British system where
things seem to be moved with great dispatch and where authority looks down, it
seems, on almost all controversy with great rigidity and power...?
Justice Brennan:
Well, I think there's something to be learned from that.
Candidly, I said and still believe that there is a great deal to be learned
from what was then the Common Pleas Court trial system where a day certain was
given, and I mentioned the Assignment Clerks and the roomful of people, and he
would call out case and send it to Judge Kenney, call out a case and send it to
Judge Dingeman, and when your case was called, you went, and there was
no..there was no discovery, there were no interrogatories, there was no
pre-trial preparation. The day you were served with a summons, you were told
your day to come to court. It was like going to Traffic Court, and well, let's
say...you could do that with little cases, you know, and that amuses me because
if the process of pre-trial is so productive of a better quality of justice, by
what right does society reserve a better quality of justice for larger cases? I
mean, to a poor man whose case is $100.00, isn't he entitled to just as fair a
hearing and so on? If it is unfair to have a trial without pre-trial discovery,
then why is this unfairness visited only upon the poor people?
Mr. Lane:
Did you happen to catch in the Bar Journal about two or three
years ago Bill Peterson's article that was not displayed well - it was way in
the back of the magazine. It had originally been titled something about
judicial pollution, the idea being that trying to transfer the idea of
environmental pollution...so much brick-a-brack, baloney, and posturing and
delay that is cynical or contrived that all the numbers become fallacy. You
talk about numbers, you don't talk about the substance and he said there are
cases that ought to be tried and tried promptly, and there's a lot of stuff
that by judge made law and for other reasons, it's just jamming up the
system.
Justice Brennan:
Oh, I agree with him, and Bill Peterson is a very able man and
a very perceptive man, and I think that he has certainly been in the trenches
trying law suits up in Cadillac for a long, long time.
Mr. Lane:
I didn't mean to digress...
Justice Brennan:
I would certainly give it a lot of credibility. Anyway, we were
sort of talking about my years on the Circuit Bench. There came a time in
1964...I ran for election, and I think I told you I led the ticket and all that
and being elected to the Circuit Bench. Then in 1965, my daughter Ellen was
born, and in 1966, Governor Romney called me when I was over at my cottage, my
mother's cottage, and asked me...or Bob Danhof called on his behalf and asked
me to come and visit the governor at his home, and he asked me if I would run
for the Supreme Court, accept the nomination of the Republican Party which was
about to be bestowed on somebody within about 48 hours of that moment.
Mr. Lane:
You actually did go to Romney's home?
Justice Brennan:
I went to Romney's home over in Bloomfield Hills, right there
near Long Lake and Woodward, and he said, "You know, you can't win probably,
but two years from now when Ted Souris runs, you can have the nomination. You
do your duty now, and you can have the nomination". So I said, "Fine, Governor,
whatever you want. You put me on the Circuit Court. I'm happy to do whatever
you feel is the way for me to serve the people", so I undertook the
assignment.
Mr. Lane:
That was really double-time, wasn't it? The convention was
going to be on a Saturday, and this was like a Thursday?
Justice Brennan:
Yes, this was Wednesday or Thursday.
Mr. Lane:
And up until that time, had there been anybody that was front
and center for the nomination?
Justice Brennan:
There were a few people poking around trying to get the
nomination, but I think one of them was John O'Hara, Jr. Old John P. O'Hara
used to be Recorders Court judge, and I think John, Jr. was looking for the
nomination as well, but anyway, they asked me to run, and I proceeded to jump
in.
Mr. Lane:
That would have been in August?
Justice Brennan:
That was in August, and I was...I don't see it...I thought
maybe I had a copy of my talk when I accepted the nomination, but I do remember
that I paraphrased Fiorello Laguardia's famous comment when he said, "My only
qualification for public office is my monumental ingratitude", and I said,
paraphrasing that, I said, "I want all of you to know", and I'm addressing
2,000 Republicans at a convention, "that my only qualification for your
partisan nomination to the Michigan Supreme Court is my monumental
non-partisanship", and I told them then that I thought that the parties
shouldn't be nominating candidates for the Supreme Court, but I would take the
nomination and run on that standard. Eventually, because I was just
reviewing...we were talking about getting ready for today's discussion...
Mr. Lane:
Did you get a guarantee of so much money to fund into your
campaign?
Justice Brennan:
No, there is no guarantee of so much money. They said they'd
help me and before it was over, I guess I did get about $60,000. I also tried
to raise some money myself. I had conducted a series of luncheons in Detroit. I
figured if I could succeed well enough at that, I would make enough money to
get out of town, and that would have made a lot of people happy, but...
Mr. Lane:
Would it be fair to call these lawyer luncheons?
Justice Brennan:
Yes, basically they were...yes. I took after Tom Kavanagh and
Otis Smith, but mostly I mentioned Tom Kavanagh, the then Chief Justice.
Because the Michigan..the constitutional revision of 1963 had just been made
and come into effect. It was the first election to the Michigan Supreme Court
under the constitution of 1963, and what that constitution did that the
previous constitution did not do was it permitted an incumbent justice of the
Michigan Supreme Court to nominate himself or herself by an affidavit, and I
said in one of my speeches during that campaign that this was the first chance
that any Michigan Supreme Court justice has ever had to stand tall in the
dignity and nobility of his judicial robes and say, "I'm not the Democratic
candidate. I'm not the Republican candidate. I am an incumbent justice of the
Michigan Supreme Court running for re-election on my own record of impartial
non-partisan public service. I seek the support of men of good conscience in
both political parties, not because I am philosophically identified with them
nor because I have favored their interests but precisely because I have favored
no man and feared none". We didn't hear that from the Chief Justice, did we? He
filed his affidavit of candidacy as did his running mate and then they went to
the state convention of the Democratic Party and proceeded to add its partisan
nomination to their own. Sure, it was politically smart, a candidate for public
office likes to have all the endorsement and all the support he can get. I'll
buy that, but if this was the only reason why they went to the Democratic
convention, why didn't they come to the Republican convention, too? George
Romney walks in Labor Day parades. Why couldn't Thomas Kavanagh, if he is a
non-partisan candidate for a non-partisan office, come and talk to a Republican
caucus and ask for support? You know, people laugh when I suggest that the
incumbent justices should have come to the Republican conventions. They do.
They laugh. They give me the elbow and say, "Aw, come on now. Who are you
trying to kid? Republicans know that Kavanagh is a Democrat, and he knows that
they know it. He wouldn't have gotten to first base". That laughter worries me.
The fact that people laugh at such a suggestion proves to me how deep- seated
is the public's cynicism about the myth of non-partisanship on our high court.
The plain truth of the matter is that there is nothing strange about the idea
whatsoever. The facts are is that it is being done all the time here in Wayne
County. I can cite you example after example in Wayne County of judges who were
once active Republicans and who enjoy the support of the Democratic party in
non-partisan judicial elections. I can cite you example after example of former
Democratic office holders who are enthusiastically endorsed by Wayne County
Republican organizations in non-partisan judicial elections.
Mr. Lane:
Did that get any newspaper attention?
Justice Brennan:
[Expletive] little.
Mr. Lane:
Practically none.
Justice Brennan:
Practically none. I thought it was a great campaign, and I
started off..I talked about how I'd run for office in Detroit and it was always
a popularity contest, and we sent out post cards to our friends and I said,
"I'm going to do something unusual for me and for all of us who have been
active in Wayne County non-partisan judicial politics. I'm going to talk about
the issues, and there are issues", and then I started off. That was one of my
biggest issues was the fact that here was the Democratic candidates, the
candidates, the incumbents who had the right to nominate themselves who had
gone only to one party and asked for that nomination and ignored the other
party. I guess I told this...talking about non- partisanship and the public
conception of non-partisanship. They tell the story of a man who lost his first
wife and then after a while, he remarried. He lived with his second wife for a
number of years and then she, too, passed away. He buried her a little distance
away from the first wife in the same cemetery plot. When the man himself died,
they found this instruction in his will: "Bury me exactly between my two
beloved wives, but tilt me a little towards Tilly" A lot of the people have the
same foolish idea about judges. They want them placed squarely in the middle,
but tilted a little one way or the other. So then I went on to say, "I don't
like the present system of nominating Supreme Court justices, because I don't
believe there should be such things as non-partisan Republicans and
non-partisan Democrats. It is a contradiction in terms", and so
forth..."Nevertheless, I have the Republican party's nomination for the Supreme
Court" and this is where I told them that I had told the delegates the Fiorello
Laguardia..."My only qualification for their partisan nomination is my
non-partisanship", and so on.
Mr. Lane:
Now that we're on the subject, let's finish it. I intended to
bring this up, you know. Why is it...first off, is there any way to get the
kind of message that you were trying to project...is there any way to get
public attention for that, and do you think if there is not, then what hope is
there to get away...My God, I suppose you read the papers the other day about
the latest development on partisanship on the Michigan Supreme Court where we
have a man who was fore-ordained by the demand of his predecessor to be of a
certain race, who turns out to have been the governor's...
Justice Brennan:
Legal advisor.
Mr. Lane:
All right, staff man, who is going to be sworn in in Detroit at
the Art Institute. For some reason that escapes me, but it sure has very little
to do with service on the Supreme Court in the State of Michigan, but anyway,
that's only the latest in a succession of events that we could sit here and
enumerate for a long time, but do you have an answer? Do you see anything that
is hopeful, at least, to our getting away from the evils of what you just
described?
Justice Brennan:
Well, I think the most obvious thing which I have said and
repeated and continue to believe is true is that we need a simple, non-partisan
primary election for the Michigan Supreme Court.
Mr. Lane:
But you never got anywhere in the legislature with this.
Justice Brennan:
The legislature never got anywhere. I got kind of grudging
interest from some newspapers when I started out with what I called the
Committee for Constitutional Reform some years ago, and I had about four or
five constitutional issues including term limitation which is now getting to be
a common thing.
Mr. Lane:
Did you get my little note?
Justice Brennan:
Yes, I got your nice note, but I was way out, way ahead on that
one, but the non-partisan primary makes all kinds of...you know what happens,
Roger? You go out and you say, "This is what we want to do. #1 - There is
nothing sexy about constitutional reform. It doesn't put money in anybody's
pocket. The average business man, the average wealthy person, what are they
going to donate money for? Is this going to do anything good for anybody
directly, you know? It is going to get me any ears that I can whisper into in
the Capitol? Can I influence legislation? Can I affect my cost of doing
business in Michigan? The union guys want to know does it put any money in our
guys pockets? Will it raise their unemployment or their pension funds or
protect their jobs from being washed out because businesses are being closed or
whatever. It isn't going to...they want to talk economics, dollars and cents,
taxes and so on, and they want to talk about who, in terms of personality, the
newspapers do, is out there. [Expletive] it, Roger, I read these speeches, and I say
those are thoughtful statements of...discussions of public policy. I talk from
experience about what is good and bad in terms of the way to do...when I give a
speech and when I prepare a speech like this typically, you can hear a pin drop
in the room. People don't fall asleep when I'm talking and I can talk sometimes
for a fairly good length of time. They will come up to me afterwards and tell
me what a wonderful speech it was and how interesting it was and persuasive and
so on, but two things - they don't interrupt me with applause, and they don't
quote me in the newspapers. What I sort of end up discovering that I am, is a
pretty good teacher, maybe. I am able to state things...hey, I read them and I
say, "That sounds pretty good, you know. Makes sense. It is well stated,
clearly enough stated", but it's not sexy enough or simplistic enough to get
people to respond to, and when I go out and talk about a non-partisan primary
or Committee for Constitutional Reform and whatever else, newspapers want to
know if I'm running for governor. That's all they know. They don't
care..."Who's running against you, then? Is he a good guy? What bad are you
going to say about him? What bad is he going to say about you?"
Mr. Lane:
Let me try to drive a point here. Suppose you took that speech
and you went and it's in the appropriate season, not football Rose Bowls or
something like that. You went and gave it at East Lansing High School on the
proper convocation or whatever they call them, gave the same thing at Sexton
High School, and if it were possible to get some kind of cooperation with the
people in one of the schools to say, "Now, we're going to have tomorrow...we're
going to have somebody with the opposite view, and he's going to give another
talk about the same subject matter and then on Friday, we'll have a vote on
this matter, or we'll have you all write two page essays on the merits of this
proposition", what would be the response. Would you get any more response from
that kind of an exercise, and are we talking about something that is so rotten
in the system of public awareness, education, political participation? You say
what it is, but what the hell is wrong?
Justice Brennan:
Well, what's wrong is that...what's wrong is that the Greek
democracy doesn't work, and didn't work in Greece and won't work here, and the
founders of this nation didn't envision a Greek democracy, a totally
participatory democracy, because you can't conduct a meeting of 250,000,000
people with Parliamentary procedure. You can't, and it's getting to the point
where it is questionable that a 480 people in the United States Congress and
House of Representatives is a body of appropriate size to conduct business in a
parliamentary fashion. It certainly can't do it with 2,000 delegates to the
Republican National Convention. I mean, this country was designed to be a
representative democracy, a Republican form of government whereby people
functioned through their representative. The representatives can understand
this kind of thing, and they can vote...
Justice Brennan discusses the process of voting on the 1963 constitution in regards to his previous remarks on democracy. He then talks about running for the Supreme Court in 1966, the composition of the court at that time and, after his election, the "showdown" for Chief Justice of the Supreme Court, involving most prominently among the justices Mike O'Hara, Thomas Kavanagh, and John Dethmers.
Mr. Lane:
Now we're talking.
Justice Brennan:
I think when it comes to talking to the general public and
getting the general public to respond favorably or unfavorably to something,
they you're got to get into slogans, you've got to get into simplistic
presentations and look at the constitution of 1963. People...we adopted a new
constitution in this state in 1963, and a lot of good work was accomplished by
that convention, and there were excellent people at that convention, and they
did a lot of very fine things through the art of compromise and persuasion and
whatever else. When it came down to it, the people voted on a new constitution
in 1963, and they didn't vote on the specifics on the judicial article or
whatever. They voted on conceptually, did they feel we needed a new
constitution or was the old one sufficiently described as "horse and buggy" so
that the new one was modern and streamlined and so on. Romney went around the
state "we're going to have only 19 executive departments. We're going to
streamline state government. It's going to be more efficient, going to serve
you better". They went with that as the conceptual notion as to why they
approved the new constitution, not article by article and line by line how did
it improve our form of government. The same thing is true about a non-partisan
primary election system. I don't think that the general public, if you were to
run a referendum on that subject...maybe they'd fly with it if you could create
an ad campaign that would simplify the issue but by and large, those are the
kinds of things that ought be included in a convention setting where there is
competent representatives working out these problems. That should have been
solved in 1963 and wasn't.
Mr. Lane:
Let me tell you another...fly off the subject. I've lived in
the same place for 20 years now. It is in Lansing Township. A bunch of tennis
courts down at the end of the block. They're deteriorating and going to hell. I
politely called attention to Phil Pittenger and various others since then and
when I finally get to talk to somebody, they said, "Oh, you've got to come out
to the township meeting". Well, I go out there and I discover that this isn't
the township product at all. They say, "Well, we got grant money for that, free
money from Washington, and we can't do anything about it. We can't wedge
$400.00 to paint the lines or do anything like that. We're not in a position to
do that. If we could only get some grant money. If we could only get somebody
to give us a gift or a citizen". I don't know what. Bicycle paths are coming
out of Washington. I used to...in the early days of my residence there, people
would knock on the door once in a while and a guy would say, "I'm your
committeeman and there's an election coming up. I just wanted to see if you
were satisfied with the way your problems are being handled". That doesn't
happen anymore. What I'm trying to say is there something about the way the
system is decayed or deteriorated or changed, has this got a lot to do with it
or am I just sort of picking out some insignificant little straws flying
through the wind?
Justice Brennan:
I think that's an important...I think there's been a lot of
de-communitizing of our society, of our culture. Certainly, you just drive
through any community today and look at the way they're developed. You have the
strip and the McDonald's and so on, and how many people you talk to of your age
or my age and say, "Well, how's your kids, your family?". "Well, I've got four
kids and this one is in California and that one is in South Dakota", etc., etc.
The sense of community and of people taking roots and having roots, I think has
changed. Looking to the national government for the solution for everything,
and the willingness and readiness of the national government to spend money for
local projects, to legislate in local affairs has been, from the days of
Franklin Roosevelt, a growing proposition in this country, so yes, I think the
nationalization of government and the weakening of local communities which were
held together by churches, etc., etc., that are all becoming unglued, is all
part of package you're talking about.
Mr. Lane:
Okay, it probably took too much...
Justice Brennan:
So Romney asked me to run for the Supreme Court in 1966. I did,
and let me do this if I can...I'd like to just talk a little bit about that
campaign and then I want to talk about the first thing that happened when I
went on the Michigan Supreme Court. At that point, I think we can sort of stop.
The campaign, as I say, began with a series of luncheons that I held down in
Detroit in which I criticized the Chief Justice. Over the next couple months,
it became Brennan vs. Kavanagh, Kavanagh vs. Brennan. "Brennan says this about
Kavanagh", "Kavanagh says this about Brennan", etc., etc., and Otis Smith got
lost in the shuffle, and it happened that I ended up coming in second, Smith
came in third and I was elected.
Mr. Lane:
You won by 101,000 something, didn't you.
Justice Brennan:
Yes, as I remember, I had 700,000 and he had 600,000. Tom
Kavanagh had 1,000,000, so I wasn't even close to him, but for a 37 year old
Circuit judge from Wayne County, I did very well. I remember Michael O'Hara was
on the Court at the time, and I remember bragging about my performance in the
upper peninsula, how I had defeated Tom Kavanagh in Luce County, and I said,
"I've never even been in Luce County", and he said, "Well, don't brag about
your results in Luce County.". I said, "Why not?" He says, "There's only one
thing up there and that's the insane asylum at Newberry". Anyway, but I ran
well in Wayne County and I ran well in a number of other places around the
state, and I won the election. Otis Smith was very gracious, urged me to
appoint his secretary as my secretary which I did, and she served me on the
Court during a number of years until she retired. She was a lawyer. Mary Lou
Shepherd was her name.
Mr. Lane:
She is still around, isn't she?
Justice Brennan:
Oh, yes, she is still around. She had graduated from Leland
Carr's school of legal studies and had taken the bar as did Mike O'Hara. That's
how he took the bar. As a matter of fact, when I went on the Supreme Court, two
colleagues of mine had not graduated from Law School, Mike O'Hara and Gene
Black. Black spent one day at the Detroit College of Law, didn't like it, went
home and studied law in somebody's law office, and I think Mike may have had a
year at Notre Dame Law School, but he never graduated from law school, and he
actually studied under Judge Carr before he became a lawyer. As soon as I won
the election, I began getting phone calls from Gene Black who was a marvelously
conspiratorial gentleman, you know, and had some very strong feelings about the
court. The man literally lived the Michigan Supreme Court. He had no other
life, no other interests, and he was very concerned about Tom Kavanagh. He was
unhappy with Tom Kavanagh, and the Court in those days just before I came on
was full of bitterness and divisiveness, rancor. There was a case called...I
want to say Triple X...I may be wrong.
Mr. Lane:
Triple X is right. Triple X is the pharmacy case?
Justice Brennan:
Yes, which had occurred within a year or two before that, and
it was a case in which the Court, then having eight members, was divided down
the middle, and as I remember hearing about it, half the Court ordered the
clerk to issue this kind of an order and half the Court ordered the clerk to
issue another kind of an order, and the clerk, being smart, didn't do anything,
which is probably the only way he could save his job. So, that was a good
example of the kind of thing that occurred.
Mr. Lane:
Let's enumerate who these people are now.
Justice Brennan:
Who was on the Court in 1966...
Mr. Lane:
We can call them off - Carr, Dethmers, Kelly...
Justice Brennan:
No, Carr is not there any longer.
Mr. Lane:
Did you say in 1966?
Justice Brennan:
1966 when I ran for the Court, the Court consisted of Thomas M.
Kavanagh, Chief Justice, Harry Kelly and John Dethmers, Michael O'Hara, Paul
Adams, Ted Souris,...how many have I named.
Mr. Lane:
You haven't mentioned Black.
Justice Brennan:
Eugene Black.
Mr. Lane:
That would be six. You wouldn't have been on then...Are you
sure Carr had gone by then?
Justice Brennan:
[Expletive] it, I can't tell you...Oh, Otis Smith. Did we name
Otis Smith?
Mr. Lane:
No, we didn't. You're right.
Justice Brennan:
So that's the Court. That's the eight people. Let's go over it
again. Thomas Kavanagh, Harry Kelly, John Dethmers, Paul Adams, Ted Souris,
Gene Black, Otis Smith,...and...there were three Republicans - O'Hara, Kelly
and Dethmers. There were five Democrats - Kavanagh, Souris, Adams, Black and
Smith.
Mr. Lane:
Right, if you call Black...
Justice Brennan:
Black was a D...he was nominated with the Democrats. He had
been a Republican Attorney General, and he was clearly a maverick on the Court,
but you could call it then four...
Mr. Lane:
It went 4:4.
Justice Brennan:
Four Democrats, and he frequently signed with the Republicans
on issues, and as he got older, he became increasingly conservative on many,
many things. All right, so that was the Court as it existed during my campaign.
There were many, many instances of very strong language between Gene Black and
Ted Souris. They were just like oil and water. They didn't mix well at all, and
they were given to do some, engage in some very strong banter back and forth in
the opinions, as a matter of fact. Black, I think, more than any of the others,
tended to be a loose cannon on the deck in terms of his rhetoric, and that was
one of the things that I said in my campaign, that I laid at the feet of the
Chief Justice.
Mr. Lane:
I remember. I was going to ask you about that.
Justice Brennan:
That I said he was responsible, at least, for not being able to
control that kind of language as it was coming out of the Court, so obviously
when I was elected, I started immediately getting phone calls from Gene Black
who wanted to make me the Chief Justice. That idea I found almost bizarre. I
was 37 years old. I had never spent even a day on the bench in the Supreme
Court. As I told him, I didn't even know where the bathroom was, and he wanted
me to be the Chief Justice. I said, "I'm not opposed to being Chief Justice but
not now, certainly". Well, then who will be Chief Justice, and I certainly
agreed with Gene Black that it shouldn't be Tom Kavanagh. I said, "Well, the
logical person is Mike O'Hara". Dethmers had been Chief Justice. He was very
much of a laissez faire Chief Justice. He wasn't good on the administrative end
of things. He wasn't a good man to go and get money for paper clips from the
legislature, you know. He perceived the office of Chief Justice to be more of a
ceremonial thing and that sort of let the Court Clerk run the Court in terms of
its administrative efficiency. Tom Kavanagh had been a bull in the china shop
and he was one of the reasons that Gene and I were in cahoots trying to change
the leadership. Harry Kelly was an invalid and on in years and had no interest
at all in being Chief Justice. Gene himself knew himself and knew that he was
too iconoclastic to be a Chief Justice and besides, he lived in Port Huron and
he kept his office on his back porch in Port Huron, and he was simply not a
good politician, a very painfully shy person who would never be any good at
being even a ceremonial chief justice, so it pretty much came down to either
O'Hara or myself and since I was brand new on the Court, all the arrows pointed
at Mike O'Hara. So I began talking hard to Mike, and Mike and Mary had invited
Polly and me up here to East Lansing shortly after the election. I think that
I, or maybe during that campaign, we were their guests for the great Michigan
State-Notre Dame 10 to 10 football tie. That was the first game I saw in the
stadium there as a matter of fact, but I began working on Mike. I said, "You've
got to take it. You're the logical one".
Mr. Lane:
Had you known Mike before that?
Justice Brennan:
No, I really didn't know Mike until that campaign, so I really
didn't get to meet him until after the election and we became good friends
almost immediately because he was that kind of a person.
Mr. Lane:
Yes, he is a decent guy.
Justice Brennan:
But I was the point man. I talked to Dethmers. I talked to
Kelly, and I lined up the votes.
Mr. Lane:
This was...you weren't even on the Court.
Justice Brennan:
I wasn't even on the Court. I had never sat with the judges at
all. I was just between the election and the first meeting of the Court, and I
was out there really working at it. Finally, January rolled around, and it was
time for the Court to meet. I came up here and I think in those early days, I
used to come and stay either at a motel or at the YMCA. Sometimes I stayed at
the YMCA but this particular night, I was out with Mike, and we closed the bar
at the Jack Tarr Hotel or Olds Plaza or whatever it was called. I was working
very hard on selling him on becoming Chief Justice, and he was being very
reticent and finally when they closed the saloon at 2:00 a.m., I had reached
the point of being able to persuade him at least to commit to me that he would
think about it.
Mr. Lane:
What was his reluctance?
Justice Brennan:
I'll tell you, but finally at 4:30 a.m., I get a phone call and
it's Mike and he said, "I can't take it". "Why can't you take it?" "I can't
tell you, but I can't take it". So I go into the meeting of the justices for
the first time. I greet my colleagues and I sit down, and the first order of
business that the Chief Justice announces is the selection of the Chief Justice
for the next two years, and Paul Adams, as I recall, made a motion that Thomas
M. Kavanagh be re-elected for Chief Justice for the next two years and Ted
Souris seconded the nomination whereupon Tom Kavanagh said, "All those in
favor, signify by saying 'Aye'", and there were three votes, three affirmative
votes. As I recall, he didn't even take the negative votes. He looked around
the room and said, "Well, what do you guys want to do?". He realized he had
only three votes. "What do you guys want to do?" Now, I had not had a chance to
talk to Gene Black or Kelly or Dethmers about the fact that O'Hara was not a
candidate and those people were all expecting me to nominate Mike O'Hara, and
O'Hara is looking at me and glaring and giving me the negative head shake, and
Black is looking at me and looking at O'Hara and looking back at me and trying
to figure out what is going on, and I'll bet you the silence in that room
lasted for four or five minutes before anybody said a word and finally, Gene
Black said in the most exasperated tone of voice, "God [expletive] it, John, I didn't
like the way you handled the job of Chief Justice last time, but you're
certainly better than Tom is (pointing to Tom Kavanagh), and so I guess we're
going to have to make you Chief Justice again. I'll nominate John Dethmers".
Harry Kelly...you could have knocked him over. He had no idea what had just
happened, but basically, he was...Harry, Kelly and John Dethmers were of the
old Republican school, you know, it was a team program for them, and so
Dethmers was totally shocked, taken aback, stood up with tears running down his
face, and told us all how thrilled he was and how flattered and how
appreciative he was that the Court was now about to give him back the Chief
Justiceship, or as a matter of fact, I guess we voted before he made that
speech, so he became Chief Justice and then he made the speech, but he was
clearly deeply shaken and touched by the whole thing, loved being Chief Justice
and in fact, had been Chief Justice longer than any other Chief Justice in the
history of the state, I think.
Mr. Lane:
Could be.
Justice Brennan:
Because Dethmers had been chosen Chief Justice when he was a
relatively young member of the Court and given the responsibility to get the
papers and pencils and do all the administrative things at a time when the
Carrs and the Kellys and all the other old guys didn't want to be bothered with
any of that stuff, so he had had the honor and the glory of doing it, and
he...he looked like a justice with the white hair and the deep voice and the
very severe demeanor, so anyway, he took back the job. He was an ineffective
Chief Justice, to say the least. During his term of office in 1967 and 1968,
the first meeting of the State Officers Compensation Commission, formed under
an amendment to the constitution, came to be, and he went to...we asked him,
the Court instructed him as our representative, our leader, to go down there
and put a pitch in for salary increase because we hadn't received one in some
length of time, and the Court, members of the Court were then getting $35,000
which was, I think, less than what maybe some of the Circuit Judges were
making, at least not a lot more. John Dethmers went to the State Officers
Compensation Commission and made a presentation which...if I don't quote it,
would paraphrase it very close, okay...he said, "Well, ladies and gentlemen, my
colleagues want me to come down here and ask you for some more money. Now,
personally, I am very satisfied with the pay. I don't have many wants and
needs. I get along nicely, myself and my wife on what you folks are paying me,
and the people of the state of Michigan are paying me, but my colleagues; they
want some more money and so they'd appreciate a raise". That was his whole
presentation, and of course, it resulted as you can well imagine in zero,
nothing, though I'm not too sure that the governor didn't get a raise and the
legislature, but the judges got nothing.
Mr. Lane:
I think I was there that time, and Gus Scholle showed to the
legislature his new full-time legislature...Joe Kowalski...and Gus made a
pretty good pitch and of course, these people, most of them, were quite
amenable, either for political reasons or his personal charm and all that.
Justice Brennan:
Well, anyway, that's what happened, so two years later, in 1969
when...end of 1968 and the beginning of 1969 when the Chief Justiceship was up
again, I was determined to go after it because I felt...one thing I had to do
was to do something about the salary. We hadn't gotten a nickel of raise.
Mr. Lane:
You had Black's support.
Justice Brennan:
I had Black's support and in the meantime, the Court had gotten
down to seven players, and something else happened. Mike O'Hara had been
defeated.
Justice Brennan:
T.G. Kavanagh?
Justice Brennan:
T.G. Kavanagh defeated him. Now, you asked me before about why
O'Hara wouldn't take the Chief Justiceship. Before I came on the Court in
January, 1967, it had been the practice of the justices, almost all of them, to
go to the Lansing City Club every day for lunch or frequently for lunch and
have a drink oftentimes at lunch. Thomas M. Kavanagh was a frequent participant
in that luncheon group. From the day I went on the Court, he didn't go to lunch
with the group. I did, Souris, Adams, O'Hara, and Dethmers; all of us went.
Harry Kelly generally didn't go because he couldn't get around very well. He
was in a wheelchair, and Tom Kavanagh didn't go, but the rest of us were there.
Now, 1968 rolls around and O'Hara is defeated by Thomas G. Kavanagh. It's his
last day, let's say December, 1968, the last day the Court is meeting with
O'Hara as a member of the bench. I'm sitting on the end of the bench. John
Dethmers is the Chief Justice. Between Dethmers and myself is Thomas M.
Kavanagh, sits next to me. I passed him a note, "Tom, today is Mike's last day.
Won't you please make an exception and join us for lunch?" I shoved the note
over to him. He takes the note, leans back in his chair and wheels around so
his back is facing me, reads it, and a long, long time passes. Meanwhile,
counsel is arguing some law suit or another, and suddenly Tom sits straight up
in his chair and wheels around to me and leans over so his face is away from
the bench, the lawyers arguing the case, and he says to me, "Tom, I have
nothing against you personally, but he double-crossed me". I said, "He did?".
He said, "Yeah, he did", and that was sort of the end of it. Well, I began
piecing the story together with conversations with other people, and the story
basically was this: Back in the days when Leland Carr was on the Court and Tom
Kavanagh, and we're talking about in the 50's, Tom was elected to the Court and
very ambitious to be Chief Justice. Dethmers had been Chief Justice for years.
Finally Tom Kavanagh had enough votes to keep Dethmers from being Chief
Justice, but he didn't have enough votes to get himself elected Chief Justice.
It was a 4:4 standoff, and he pulled the string and ordered his troops to vote
for the standoff which they did, and I can't tell you the year, but I'm
guessing it was about 1959, around in there. There was a very long period of
time when the Court did not have a Chief Justice appropriately elected.
Dethmers continued to function as Chief Justice as a hold-over but there was
still no Chief Justice. In fact, maybe I can even give you the date on that
because there's going to be something in the front of the book to explain
that...let's us set the record straight...
Mr. Lane:
You mean there's a footnote on the page that describes the
membership of the Supreme Court and who was Chief Justice, that says precisely
what the fact was?
Justice Brennan:
I think we may...with a little bit of luck, I may be able to
nail down a date or two just to sort of prove that I know what I'm talking
about. Maybe to correct a mis-statement if I'm in the middle of making one. I
can see already that I'm way off on the timing. Hiriam Bond...I see his
name...
Mr. Lane:
Well, one thing to consider is that Mike O'Hara didn't come on
until about...was it 1962? Who did he beat?
Justice Brennan:
I'll tell you. That's the story. I'm trying to put it together.
Let me put this story together. You'll hear all these...
Mr. Lane:
Mike O'Hara beat Paul Adams.
Justice Brennan:
Yes, you're right. That's the story. You just...you just ended
it here. Wait a minute...okay, I'm getting closer now. It's one of these, I
think, where it happens. We have this stalemate, and the stalemate, I'm going
to tell you, is...here it is.
Mr. Lane:
Which volume is it?
Justice Brennan:
At the beginning of volume 366 of the Michigan Supreme Court
Reports which covers a period from March 16, 1962 to July 2, 1962, the front
page, the front piece or whatever it is called says Supreme Court and at the
top, it says Chief Justice. "John R. Dethmers of Holland. Term expires December
31, 1969", and after that, a footnote #1 and it says at the footnote, at the
bottom of the page, "to April 3, 1962", and right underneath that, it says
"Leland W. Carr of Lansing, December 31, 1963. His term of office expires" in
the footnote #2, and down below, it says, "From April 3, 1962", so on April 3,
1962, the Court broke the deadlock that had existed for at least from January
of that year in the office of Chief Justice. Dethmers, Carr and Kelly and Black
and Paul Adams...Dethmers, Carr, Kelly, Black and Paul Adams voted for Leland
Carr so that Adams joined the maverick Black to vote for the Republican.
Mr. Lane:
Where does O'Hara come in?
Justice Brennan:
Wait a minute. O'Hara isn't even on the Court.
Mr. Lane:
Yes, okay.
Justice Brennan:
So now, we have Leland Carr as Chief Justice and Paul Adams is
up for election, and Thomas M. Kavanagh is so angry and so offended by the fact
that his friend, or his co-fellow Democrat Paul Adams has stepped out of line
and voted against him for Chief Justice that Thomas M. Kavanagh went to work on
it, and supported Michael D. O'Hara, the Republican nominee for election to the
Michigan Supreme Court, took him all over the state to the Knights of Columbus
and put in all kinds of endorsements among other such groups to get him
elected, and I think also used his influence with the unions to dump Paul
Adams. So Adams was defeated and now, I'd have to take a look at exactly when
that occurred, but Adams...
Mr. Lane:
This was in an election or...
Justice Brennan:
1962?
Mr. Lane:
Yes, ...
Justice Brennan:
1962.
Mr. Lane:
Sure, because remember O'Hara ran in 1968 and got beat.
Justice Brennan:
Okay, so it would have been what...a short term from 1962 to
1964?
Mr. Lane:
See, Adams had been appointed, and he had, as I recall, he had
to run.
Justice Brennan:
Yes.
Mr. Lane:
And then the constitutional script came in there, but I'm
almost sure that Adams was beaten by O'Hara.
Justice Brennan:
Oh, I know he was beaten by O'Hara.
Mr. Lane:
It had to have been right in there because Adams came back
on...
Justice Brennan:
Adams came back on as a result of an appointment by Swainson,
wasn't it?
Mr. Lane:
You're right, and he came on in probably the end of 1963 or the
early part of 1964.
Justice Brennan:
No, because Swainson was elected the year of...Swainson was
elected governor in 1960.
Mr. Lane:
Oh, Adams ran in one, didn't he? I think Adams ran in one.
Justice Brennan:
We could check it out.
Mr. Lane:
He was appointed once.
Justice Brennan:
Yes.
Mr. Lane:
And then he...but you make the point.
Justice Brennan:
The point is that Tom Kavanagh dumped him, and he came back on
the Court chastened and never from that day forward in all the time that I was
on the Court did he ever waver in his support of Thomas M. Kavanagh for Chief
Justice. He had been taught a lesson.
Mr. Lane:
Boy, oh, boy.
Justice Brennan:
In any case, Thomas M.'s view was that Michael O'Hara had
doubled-crossed him. I'm going to finish that story, though, by telling you
that he did come to lunch, and it was nice. But it does show you, as I learned
on the Court, that the politics of the Chief Justiceship are enormous, and they
affect the politics of the state in ways that I think are subtle and things
that we don't realize, that there's that much division and partisanship,
really, in the whole process.
Mr. Lane:
Does it all flow directly out of apportionment, or is there a
lot of things?
Justice Brennan:
No, because what I described to you was before the Supreme
Court ever had anything to do with apportionment.
Mr. Lane:
Well, in a way. You know, you had that Scholle vs. Hare thing
that stirred the waters early.
Justice Brennan:
Yes, I guess that's true.
Mr. Lane:
In fact, you know, the newspaper scuttle probably, very
possibly erroneous, was that Souris got the appointment that Adams would have
gotten if he had flown right on Scholle vs. Hare, and Souris told me, and I
think this is the literal truth that he had been informed by whoever the
appropriate person was, Horace
Justice Brennan:
Gilmore or somebody, that Adams had been chosen to be appointed
to fill the vacancy from Voelker on the Supreme Court, you know, upper
peninsula and all that jazz, and that Souris had been told that he was to be
appointed Attorney General in Adams' place. That night, Williams came to
Detroit, took him out to the country club and said, "You're going to be on the
Supreme Court", and Williams later gave some kind of a explanation of what
happened because the papers were full of Adams. All the speculation and all
that sort of thing, and there had to be some explanation why he'd go down and
pick this 33 year old Circuit Judge that served less than one year, and the
best explanation, the popular explanation was that Adams was cross-wise with
Scholle, and this was denied, and Williams' explanation was "Well, he's so
valuable as Attorney General, we're going to keep him there". Maybe that's it
for right now. Should we knock it off for now?
Justice Brennan:
Okay, I got O'Hara coming on...
Mr. Lane:
Justice Brennan, this prompts me to ask you whether, in the
light of the strife and the discord that has been engendered in the selection
of Chief Justices, not only the time we're just talking about but on other
occasions...do you think that this is a problem that has an answer and
something that perhaps should be done, or something needs to be done about
it?
Justice Brennan:
I guess...the quickest way to answer that question, Roger, is
to say no, I don't think it's a problem, but that doesn't do justice to the
depth of your question. I think you are, as you asked the question, you had in
mind the machinations of politics and personal ambition. The carrots and the
sticks, all of the accoutrements of human motivation and manipulation that go
into achieving power, and perhaps you're wondering whether or not all of those
things are not destructive of the institution or somehow interfere with the
functioning of the Court. My view of the matter is related, I think, to my
concept of human nature and of human society. As we talked yesterday, I think
it's pretty clear that my background is as a Roman Catholic and one, I suppose,
would assume that means I have a certain respect for authority and kind of the
ecclesiastical dictatorship, if you will, that the obvious papal infallibility
that we believe in, and certainly the Catholic Church is a structure that
doesn't have a particularly Democratic tradition, but the fact of the matter is
that while I'm a Catholic and a Roman Catholic in terms of my...the discipline,
the faith that I profess, I'm also an American, and I think maybe I embody a
whole group of people who are American Catholics in the sense that they have a
very strong commitment to and a philosophical connection with the story of the
founding of the United States of American, the constitution, the Bill of
Rights, our revolution, the Articles of Confederation and so forth, and
philosophical idea that the power to govern flows from the consent of the
governed. I remember at the University of Detroit in political science classes
being taught that Almighty God made people as, among other things, social
animals, and our need and our desire to come together in society and in groups
is something that is inherent in our nature, as the Almighty created us, and in
that sense, in that derivative sense, authority comes from God, not in the way
that we used to think the divine right of kings, but derivatively through the
way the Lord made us to be social people, to need structures, to need civil
authority and so forth, and that is a concept that is very consistent with the
belief that the best way to do that is through the consent of the governed and
through Democratic structures. It always brings me to the idea that I am not
comfortable with the elitist notion that somehow or another, we can find a
selection process that will get us wise and benign and competent leadership. A
selection process outside of working through the consent of the governed, and I
know the failings when you work through the consent of the governed, and I know
the failings of the Democratic process, and I've watched in happen not only in
the broad governmental situation but in the micro- governmental situations of
Boards of Directors, committees, groups, courts that I've served on, the Common
Pleas Court, the Circuit Court and ultimately, the Supreme Court. When I went
on the Common Pleas Court in Detroit in 1961, I was 31 years old, and I thought
this was the epitome of activity here, human professional, social activity, and
I remember my very first judges' meeting which was hastily convened down the
back hall with judges with the robes flowing, dashing into Judge Conley's
office who was then the presiding judge, and we were talking about the business
of the Court, whatever was urgent at the moment, and I remember Harry Dingeman
coming in and he had a newspaper story, a big picture from the back of the News
or the Free Press, I forget which, of Horace Gilmore, then a Circuit Court
judge administering the oath of office or enrobing one of a number of municipal
judges at a ceremony that was written up in the newspaper...
Justice Brennan discusses his concept of human governments, citing examples from his time as a lawyer and as a judge, and the nature of leadership.
Justice Brennan:
Municipal judges, we have to remember that this is under the
old constitution, were not full-time judicial officers. Most of them served
part-time. They weren't prevented from practicing law. They were sort of
descendants of the old Justice of the Peace system, and I gathered that what
Horace Gilmore was doing on behalf of the Circuit Court was attempting to
somewhat professionalize these people or upgrade them or enhance their public
image or whatever. Well, Harry Dingeman came in and he held this up when we
came to new business in the meeting, and he said, "Look at this. Look what our
Circuit Court judges are doing in this county. They're putting robes on these
part-time municipal judges out there. They're making it as though these are
important judicial officers. Here we are, full time judges in the Common Pleas
Court, right downstairs from these people, and the Circuit Court judges on the
high and mighty...What do they do for us? Why, the first time we turn our
backs, they cut our balls off". I'm sitting there as a young lawyer, not a
young judge and expecting that I'm going to be surrounded here with the dignity
of the bench, and I listen to this tirade which first of all, was somewhat
amusing to me because it seemed to me that if one was going to surgically
remove somebody's testicles, they wouldn't do it from the back, you know,
so...in any case, that was an experience. I have to back off and tell you that
I seem to have had a lot of experiences in my life with judges not acting the
way I expected them to. When Polly and I were engaged back in 1950, I think it
was, or before we were engaged, I guess...we were going to the light opera at
the Masonic Temple. We stopped at the Sheraton Cadillac for a drink at the old
motor bar, and while we were sitting there, in came this little white-haired
man, and he staggered around the room, and he pinched the ladies on the cheek,
and he interrupted people at the bar, and he was making a fool of himself, and
we kind of looked over and giggled about him a little bit, and then went on
with our looking into each others' eyes and our conversation and then suddenly,
I felt this slam on the top of my head and I turned around and here's this
little guy, and he's got a pair of rubbers in his hand with which he has just
struck me on top of my head. I get up from my chair, and I look at him, and
he's probably a foot shorter than I am anyway, or eight inches shorter, and I
said, "I beg your pardon". He looks up at me and he says, "Take off your
glasses". Well, I wasn't wearing any glasses. About that moment, I forget what
I may have said or done, but before I was able to hit him, the bouncers came in
or the waiters came in, grabbed him and hustled him out and then the maitre'd
came over and apologized and sent us a drink and so forth. Well, minutes later,
a lady came over from the next table and said, "You know who that was, don't
you?", and I said, "No". She said "That was Vincent Brennan, the Circuit
Judge". He was quite a notorious guy. Here is was a law school student with the
name of Brennan, and as I told you yesterday, later on, I had gone to see old
John V. Brennan who is a very decent and honorable upright public servant, but
old Vincent was a lush of the first order by the time I came on the scene, and
that was somewhat disillusioning. Anyway, to get back to my story about human
governments which is a story about my concept of human governments because you
asked me about the method in which we select the Chief Justice and while this
may seem somewhat convoluted and off the point, I want to stay with it. After
two years on the Common Pleas Court, I was promoted to the Circuit Court by
Governor Romney and then I said to myself, "Now, I'm going to be with the real
judges. Now I'm going to be with the people whose councils will be conducted
with dignity and decorum and I'd better be on my toes". So now the Circuit
judges, unlike the Common Pleas Court judges, did not meet in furtive little
back hallway mid-day meetings. They met in a hotel over dinner, and so this was
great, and we went and had a few drinks, got around the dinner table and there
were twenty Circuit Court judges at the time, and I would say most, if not all
of them, were there. After a couple drinks and some conviviality, the meeting
was called to order by then presiding judge Thomas Murphy, and Tommy Murphy was
a very delightful and warm and fuzzy gentleman who had been presiding judge for
a number a years at that point, since I think Chet O'Hara had passed along, but
by this time, everybody has had a few pops, and so the conversation is loud and
people are interrupting one another, and you may remember Lila Neuenfelt who
was on the bench at that time. Lila was a female lawyer in days before female
lawyers were what they are today. I mean, she obviously went to law school when
she was the only woman in the class and survived and succeeded in the law as a
lawyer and a judge, sort of against the grain of the day. Well, she was a tough
gal, and she could cuss with the boys and drink with the boys, too. There were
some stories about that, but I can remember, you know, Carl Weideman "God [expletive]
it, Lila, will you shut up?", and on and on, and they were all interrupting
each other. I came away from that meeting thinking to myself, "Well, my
goodness, it doesn't seem to make any difference where you go, the councils are
all conducted about the same". Well, then, two or three more years pass, and
I'm elected to the Michigan Supreme Court, and now I'm going to sit around a
table with seven jurists of absolute eminence who are state-wide, political
based, former governors, former Attorney Generals, people of just great
prominence, and I'm thinking to myself, "Now, I better be ready for the real
high-class operation". I discovered that tempers are tempers, that people are
rude to one another in even that circumstance. Stories you may have heard from
others about...this happened before I got there...of Otis Smith pounding the
table and breaking the glass on the table at one point in time. I saw through
the years justices get up and walk out of the room in a fit of pique over
something that was said or done, and it...I became of the opinion that probably
if you were to sit in the highest councils of humanity, the Security Council of
the United Nations or whatever, expecting it to be so dignified, they'd all be
speaking in French, that they'd be cussing at each other, and they would be
beset by all of the human emotions and foibles that we all suffer around our
own dinner tables. That's just an observation. I believe that in all human
affairs, there is leadership. Leadership is a natural instinct of human beings.
Some people have it in greater quantity than others. Everybody seeks it, and we
have an innate inherent need and urge to have leaders. We give the
responsibility to do jobs to the chairman of the committee. We delegate
authority. We do that instinctively in our own lives, to our children and so
forth, so I believe that the idea that if you put any twelve people on a desert
island, they're going to organize. Pretty soon, you're going to have a
chairman, vice-chairman and secretary and treasurer.
Justice Brennan:
I guess what I'm trying to say is that leadership is the
natural thing, and it exhibits itself naturally in every group of people; the
mafia, you know, the tribal communities, whatever, and I...I think the
processes we've developed, Roberts Rules of Order, the Constitution of the
United States, these traditional ways in which men and women organize
themselves into social bodies are the civilized overlay over these basic
instincts to assimilate and exercise power over one another, so given all of
that, I am a believer in democracy, and I am a believer in democracy as the
best way of selecting leaders. I believe that all leadership generally begins
with the desire of the leader to become a leader. They may not express it, and
they...like old George Washington, and they'd always be saying, "I don't want
to do it", but nevertheless, that instinct that I know which way this bus
should be heading and trying to convey to other people what that image is and
get them to get on the bus and go is...I mean, that's what George Washington
did. He exercised leadership in his speeches and in the counsel that he gave to
his compatriots, and then they recognized that in him and wanted to give him
the mantle. I mean, he may have been secretly going home and saying, "Now, I've
got so and so's vote today and I got so-and-so's vote today", but when they
asked him what he was doing, he'd say, "Oh, I'd rather be retired and living at
Mt. Vernon". So I've watched this thing. I watched it when I was a Circuit
Court judge. Tommy Murphy was presiding judge. There were several of us young
guys, particularly Jim Canham, and myself. Ned Piggins was not that young, but
we felt that Tommy Murphy was kind of a bland fellow who wasn't exercising
leadership and particularly was not standing up for our Court against the
Supreme Court which seemed to be coming and telling us what to do, and we sort
of felt that they didn't know what they were talking about because there
weren't that many experienced trial court judges on the Michigan Supreme Court.
Murphy had what we used to refer to as the 30-year rule. If you ever asked
Tommy why we did a certain thing, he'd say, "Well, we've been doing that way
for 30 years". That was the 30-year rule. I remember Jim Canham and I going one
time to see Ed Piggins and we had been going around from judge to judge in the
corridors lining up votes to get somebody new as presiding judge and Piggins
was our candidate. We had the list and the two of us had calculated who would
vote with us and so on, and we were persuaded that we had the votes to put
Piggins in as presiding judge. We went to him and said, "Ed, we got the votes.
We've got so-and-so, and so-and-so-, and so-and-so". There were twenty on the
bench, and we probably had 12 or whatever number of votes. Piggins said some
curious. He said that he wouldn't take it unless it was unanimous and unless
every judge on the bench wanted him to be the presiding judge, he would not
accept it. Jim and I left his office. We used to play squash every day at noon.
I remember talking about it while walking over to the Lafayette Building to
play squash and talking about Piggins' failure to grab the brass ring of
leadership. Here was an opportunity for him to grab the brass ring and be the
presiding judge. We brought him the deal and handed it to him. Now, he would
have had some people on the court that wouldn't vote for him, but he would have
had a majority, and a working majority, but he didn't want it. What I heard him
say was, "I don't want the hassle of trying to lead when people are trying to
shoot me down". In other words, "I want the obeyance of all my subjects before
I become the king". In a way, that's a little scary. That's not the kind of
leadership we're accustomed to in this country, really, and maybe he just
figured "I don't want to be bothered with the thing unless everybody wants to
go the way I want to go". In due course, I made an effort to try to see if I
couldn't get a majority of the court to support me and I was unable to, but
then Joe Sullivan came forward and was elected presiding judge and was for a
number of years thereafter, but the process by which that occurred was the
typical process of pushing and shoving and lining up votes, etc., etc. When my
time came on the Supreme Court after Dethmers had been Chief Justice for two
years, and I don't know if I told you yesterday the story about the SOC
Commission...
Mr. Brennan describes the selection of Chief Justice in February 1969, which he won, his opponent Thomas M. Kavanagh, and his accomplishments during his administration.
Mr. Lane:
Yes, you did.
Justice Brennan:
And Dethmers going down and saying we wanted a raise. I was so
annoyed about that that I was going to run. I decided I would run, and then I
started lining up my votes. Gene Black was all for me. He became my campaign
manager or my principle advisor and co-conspirator. He thought it was delicious
to put in the youngest member of the Court and somebody who was then not 40
years of age. I think I was 38 and so when we were conspiring, maybe 39. They
say - I don't know how true it is - that I was the youngest Chief Justice ever
in the history of the Court, so I had Black and myself. By that time, there
were only seven on the Court, so basically, I needed two more votes. Well, the
two votes I needed were Dethmers and Kelly, so I had to get John Dethmers, the
then Chief Justice to in effect, step aside and vote for me, and I had to get
Harry Kelly as well. Well, I won't bore you with the details of weeks of
telephone calls and meetings and visits and discussions with other people
including George Romney, talking to some people and so on, but to make a long
story short, by the time the meeting rolled around when the decision was to be
made...
Mr. Lane:
That would have been January, 1969, right?
Justice Brennan:
Well, I just checked my diary. It wasn't January of 1969. I was
elected Chief Justice of the Michigan Supreme Court on February 3, 1969. The
meeting wasn't held in January. It was a month later. Apparently Gene Black was
not feeling well, and we cancelled the meeting of the Court.
Mr. Lane:
It was the first meeting...
Justice Brennan:
It was the first meeting of the Court administratively, but I
think we held court in January without having administrative meeting. So we
met. Harry Kelly was in Florida on that day, and in any case, we reconvened and
Dethmers had not given me a commitment. I knew he wouldn't vote for Tom
Kavanagh. I doubted he would vote for Tom Kavanagh, and I didn't think
anybody...I knew that nobody was going to nominate John Dethmers. Basically, he
was going to have to decide between Tom Kavanagh and me unless he nominated
himself, so the day came and Dethmers said, "Well, the order of business today
is the selection of the Chief Justice. How are we going to go about this?" I
believe it was Thomas G. Kavanagh who was then on the Court who said, "Well, I
nominate Thomas Matthew Kavanagh for Chief Justice". Paul Adams said, "I
support the nomination", or I guess there was no support. He just nominated and
that was it. Gene Black then said, "I nominate Tom Brennan as Chief Justice",
and then Dethmers said, "Are there any other nominations?" and nobody said
anything. So he said, "Well, we'll go ahead and vote".
Mr. Lane:
Do you have seconding in this process?
Justice Brennan:
No, there wasn't as I recall. There was just nominations and
that was it. So he then proceeded to take the votes.
Mr. Lane:
Was it done...was there anything to the manner in which it was
done alphabetically or by seniority or...
Justice Brennan:
Around the table.
Mr. Lane:
Which is a seniority concept?
Justice Brennan:
Not necessarily. I don't...I can visualize where everybody was
sitting.
Mr. Lane:
Okay.
Justice Brennan:
But...I can visualize where everyone was sitting, but I can't
say that it was by seniority. Dethmers sat at the head of the table. He was
Chief Justice. Immediately to his left and around the corner of the table was
Gene Black. To Gene Black's left was Thomas G. Kavanagh. At the foot of the
table was where I was sitting. To my left around the corner was Paul Adams. To
his left which would be to the Chief Justice's right was Thomas M.
Kavanagh.
Mr. Lane:
There's one you haven't accounted for. Oh, Kelly wasn't
there.
Justice Brennan:
Kelly wasn't there, so Gene Black said, "I vote for Tom
Brennan". Thomas G. Kavanagh said, "I vote for Tom Kavanagh". I said, "I vote
for myself". Paul Adams said, "I vote for Tom Kavanagh", and Tom Kavanagh said,
"I vote for myself", so at that point, we had...I had two votes, and Tom
Kavanagh had three. Chief Justice said, "Well, let's find out how Harry Kelly
votes", and so they summoned Harry Kelly's secretary...Lord, what was her
name?...Velma.
Mr. Lane:
She was the one that did the...she was a terrific
administrative...she wrote opinions, you know, did a lot of law work, didn't
she?
Justice Brennan:
I don't think so. I don't think she did, no. I think she was an
excellent secretary and took good care of Harry but I never knew her to do any
legal work as such. He had law clerks, a long-standing law clerk. At that time,
his law clerk was, I think, Wes Hackett, but in any case, I'm pretty sure her
name was Velma. There was a Velma, and I think that's who it was. So she was
summoned, and she had been in contact with Harry and of course, he knew what
was happening and who he was going to vote for. She entered the room and John
Dethmers inquired of her how her boss was going to vote, and she said that
Justice Kelly votes for Justice Brennan. Now, the score is 3 to 3 and it now
comes to the Chief Justice to make his decision, and he stands up, and he
stands behind his chair and he begins to talk about the Court and his years on
the Court, and how he had been the Chief Justice the longest of any other
person and so on, and the accomplishments of his time as Chief Justice and so
on, and how he had felt that he had always done a good job and etc., etc. After
saying all these things, he said, "But, it seems that others around here don't
feel as I do that my job has been so able, and so it seems the Court is going
to appoint someone else rather than me to be the Chief Justice. So now it comes
to me to vote for one of the two candidates, and the two candidates are Justice
Thomas Matthew Kavanagh, and Justice Thomas E. Brennan. And both of these
gentleman have the first name of Thomas, so I am going to tell you all now",
and he is dragging this out, dragging it out..."I'm going to tell you all now
that I will break the tie between Justice Thomas Kavanagh and Justice Thomas
Brennan, and I will break the tie by voting for Thomas...", and he paused, and
he looked around, and he let it hang there for about thirty seconds, and then
he smiled and said, "Brennan". Well, I thought to myself what a show this guy
put on, you know. I got up and thanked everybody for their support and took the
chair at the head of the table. Because I was young and because I was anxious
to do a good job and certainly didn't see myself as somebody who could begin
dictating to all these senior justices the moment that I took over, I jumped
right into the business of the Court, and since we had no administrative
meeting in January, we had two months of administrative business to attend to
including cases and applications for leave and so forth to review and to
decide. I jumped right into the agenda for the day, and kept the judges there
through the lunch hour which was rare. We never did that in those days. I sent
the clerk out for sandwiches and paid for it out of my own pocket and kept them
working right through until about 4:00 p.m. Well, I suppose the capitol press
corps knew that today was the day for the Chief Justiceship, and I don't know
whether they had any idea that there was something going on but by mid-morning,
the Court was issuing orders and things were coming down, and they were being
stamped by the Clerk of the Court, "Thomas E. Brennan, Chief Justice" for
signature, and that is how the press first discovered that there was a new
Chief Justice in Michigan. I suspect that they realized is was a somewhat
stunning or interesting development at least that this youngest member of the
Court was the Chief Justice, so they were anxious to find out the story. The
message came in from the clerk that the press wanted me to meet with them and
so forth. I said, "I can't. The Court has a lot of work to do today. I'll meet
with them tomorrow. You may set up a press conference in the morning". We
worked late and that night, I went over to the hotel. I don't know whether it
was called the Jack Tar or what in those days to have dinner, and I went there
with Thomas G. Kavanagh, and on the way through the lobby at the hotel, I ran
into Al Sandner. Do you remember Al?
Mr. Lane:
Oh, yes.
Justice Brennan:
He was then, I think, with the News though later he was with
the Milliken administration, and he came up and chided me over the fact that I
had snubbed the press by not coming out and telling the story of what happened,
and if was a sign of the kind of Chief Justice I was going to be, I was going
to have trouble with the press during my administration and so on. Well, I
said, "Al, you have to understand. I was just elected today as Chief Justice. I
am the youngest member of the Court. We had a big agenda, and I just felt that
I couldn't break the meeting. It would have been very kind of egotistical of me
to break the meeting and come out and announce my victory to the world. To tell
you the truth, I like to get my name in the paper as much as anybody else, but
I have my job to do, and we'll meet tomorrow morning, and I'll answer all the
questions and take all the time it takes to give you a complete interview".
What is in the paper the next day? A story by Al Sandner - "New Chief Justice
likes to get his name in the paper". So there's how it began, and I began to
learn something about the press. I don't know if I told you the story about
Thomas Giles Kavanagh coming to me after I was elected Chief Justice,
congratulating me, extending his hand, the hand of cooperation and said, "I
supported Tom Kavanagh. I think he should be Chief Justice, but now that you're
elected, I want you to know that I'm going to help you and do what ever I
can...let me know" and so on. It was a very gracious, generous offer, and I
said, "Well, I appreciate that. I think the first thing we need to do is to try
to placate our brother Tom Kavanagh who is quite unhappy about not being Chief
Justice", and he said, "Oh, Tom's a good guy. He'll come along. Why don't we go
down and talk to him". So Thomas G. and I went down to see Thomas M. In the
confusion of having two Tom Kavanaghs on the Court, I have to tell you, was a
real problem. Those of us who were on the Court eventually came to have
different ways of saying it. It was "T.G." or "T.M.", Thomas Giles or "T.G.",
we sometimes referred to as "Thomas the Good", and "T.M." was sometimes
referred to as "Thomas the Mighty". He was also referred to as "Fat Tom
Kavanagh", and as "Carson City Fats". Those were the terms of endearment that
we developed for him, but he was quite a guy. We went down to Tom's office, and
we walked in and Giles Kavanagh said, "Well, Tom, Tom here is our new Chief
Justice, and I have just been talking to him and I told him I am going to
support him and help him in any way that I can because the Court has a lot to
accomplish over the next couple years and I think pulling together, we can do a
lot", and so on and so forth, and "I told him I thought you would be generous
to work on the team and have a team spirit" and so forth. "Carson City Fats"
didn't even look up from his desk, shook his head and said, "He'll get no help
from me". "Thanks, Tom, it was nice talking to you", and so we left. I can say
this about him. He was a partisan. He was a Democrat to his toes. He was a
Roman Catholic to his toes, and a big shooter in the K of C and so on and so
forth, a family man, revered by his family. His wife, Agnes, was a saint;
tough-minded, decisive, always told you where he was coming from and never
varied, never deviated from what he said he was going to do or how he felt
about something. I think it was Ted Souris or somebody who said of him, "Tom
Kavanagh has been wrong plenty of times, but he has never been in doubt".
Mr. Lane:
That's a good one.
Justice Brennan:
It is a good one, and it was a great way to describe him. He
was a fighter. He was a hard worker who was always thoroughly prepared for
everything he had to do. He was pompous and sort of repetitive when he was
presiding at a meeting and making the formal statements and so forth, but he
would develop kind of the jargon of the presiding officer with all the
appropriate "Harumps" and so forth thrown in. He had a deep sort of stentorian
voice which aided in that process, and like most people who are sort of big and
solid as he was, stout, he had a way of being, even though he was quite short
in stature, of presenting an imposing picture when he was presiding. And when
he came to discuss cases and he told you where he stood on the case or how he
felt about it, he didn't have to say it twice. He told you where he was coming
from, and you marked him down on your book and went on from there because it
wasn't going to change. He didn't have a lot of stomach for dialogue and
brainstorming or sort of "committee of the whole", gossip or conversation about
things. It was either this or that and that was all there was to it. I will
jump ahead because I am focusing on Tom Kavanagh for a moment. I visited him in
the hospital, I think, a day or two before he died. I remember that, and I
remember telling him of my respect for him, and him expressing similar
sentiments with respect to me. We were adversaries in so many ways, and on lots
of issues. On some issues, we were on the same side. I found him to be a
marvelous cohort in the ranks when you were fighting, and I know why the
Democrats loved him because he was a guy you wanted to have playing guard if
you were playing tackle, you know, whatever. He was a good, solid fighter. We
were together on the parochial issue, as I recall, and some others on the
Court. He was a good, tough fighter and thorough in his preparation. He was a
good man. Anyway, not to say that he was right on a lot of things, or at least
in my view. That was the way I became to be elected Chief Justice, and it was a
tenuous majority. Quite unlike Ed Piggins, I didn't hesitate to grab the brass
ring even though I could only see about a third of it, and get a couple fingers
on it at one time. I set out as Chief Justice to...I suppose if I were going to
say what was my agenda...my agenda was to try to get the Court to decide some
cases for one thing. I felt that we had too often filed multiple opinions where
we weren't giving the Bar guidance as to what the law was, and I really felt it
was pointless for us to even take cases unless we were in a position to decide
them with some authority. As a result, one of the things I did was I held up a
lot of cases. I think if you were to look at the productivity of the years 1969
and 1970 when I was Chief Justice in terms of decisions for the Court, it was
down, and quite deliberately so. I simply wouldn't release opinions until I was
sure that we had tried to hammer out an authoritative majority opinion if it
was all possible. If it wasn't possible, I tried to get the judges just to
dismiss the case as improvidently granted leave. What was the point in
displaying to the Bar that we were seven lawyers who couldn't agree what the
law was? And add to our disagreement on the substantive issues our disapproval
of each other by the words we were using in expressing our opinions. So I tried
very hard to cull some of that stuff out of the books during my period in
office. And the other thing that I did quite instinctively, and I don't think I
intended to do it as Chief Justice. If you would have asked me what my goals
were, I would have said my first goal was to get a raise for the Justices. My
second goal was to try to do something about the way we wrote our opinions, but
I did discover, I think in those years, that I had somewhat of a knack for
innovative administration, and I enjoyed it. One of the first things I did with
respect to the SOC Commission for example, I employed an economist from
Michigan State University to prepare a report and recommendation to the SOC
Commission on behalf of the Supreme Court, and he came in with a big book about
that thick. I don't know what it cost us, a couple thousand dollars or whatever
for his work, but he had accumulated all the statistics of what lawyers make
and what judges make and projected the economy and had done historically the
relationship between salaries of judges and salaries of other people and so on,
and did a wonderful job which resulted in our getting one of the largest raises
we ever got. It went from $35,000 to $42,000 which was a 20% increase. It was
belated and I think much deserved but nevertheless, it was an accomplishment of
my administration, I felt. We did some other things. We put the first...I think
we put the first black on the Board of Law Examiners a little before that. I'm
not certain, but it was about that time that Stuart Dunnings went on the Board
of Law Examiners.
Justice Brennan recalls appointing Stuart Dunnings to be the first black on the Board of Law Examiners and the establishment of the State Appellate Defenders Office and the Attorney Grievance Panel.
Mr. Lane:
He was a good one, too, wasn't he?
Justice Brennan:
Yes, an excellent man, and...but it does seem to me that it was
during my Chief Justiceship that we put the first young lawyer on the Board of
Law Examiners. It was sort of customary to have people of some maturity and
stature in the profession, which is good, but there was some sense that the Bar
Examination maybe was not being fairly handled. One of the problems was that it
wasn't being corrected fast enough. People would take the Bar Examination in
July as I did and have to wait until Christmas time to find out if they passed.
So another thing we did was that we authorized the employment of readers to
assist the Bar Examiners to get the job done, to correct the examinations, but
we also appointed Dick Spindle who was a nominee or a recommendation of the
Young Lawyers Section of the State Bar, S-p-i-n-d-l-e, later was tragically
killed in an auto accident as a young man, but he was the first Young Lawyer
Section representative, member of that board. During my time as Chief Justice,
we established the SADO, the State Appellate Defenders Office, and that was an
interesting thing. That State Appellate Defenders Office was established, was
created by a resolution of the Michigan Supreme Court, an administrative order,
and we said...it read like a statute. We said, "There shall be... and the
Governor shall make an appointment ...and the other person should be appointed
by the Supreme Court...and they shall have terms of...", whatever. In other
words, we went through and created this whole agency which was funded
originally by a grant from the Federal Government because there was a need to
get competent lawyers to represent indigent defendants in their appeals. It
wasn't a problem at the trial level, but none of the lawyers wanted to take
these appeals. They weren't expert in it, and there was very little money it
in.
Mr. Lane:
Were you the leading...the point of this whole effort on
SADO?
Justice Brennan:
I drafted the administrative order.
Mr. Lane:
That's what I really wanted to know. I somehow got the
impression that Thomas Matthew was accorded the...
Justice Brennan:
Credit for it?
Mr. Lane:
Well, my memory could be...you know...
Justice Brennan:
Thomas Matthew Kavanagh, I told you, was a tough fighter and a
partisan guy and wonderful adversary who never hesitated to take credit for
things he didn't do, and if he took credit for that, I'm not at all surprised,
but obviously, he would have been on the Court that voted for it, and I'm sure
he was in favor of it, but let's put it this way. It was my idea. It way my
idea. I drafted the SADO resolution and the matter was...we created it. Bob
Krinock who was my appointee to the Court went out and got the Federal money to
do it with, and I regarded it as one of the major accomplishments of my
administration as Chief Justice. It was also during my time as Chief Justice
that we created the Attorney Grievance Panel.
Mr. Lane:
I was going to ask you about that. May I interrupt just a
minute?
Justice Brennan:
Sure.
Mr. Lane:
On the SADO, was the judicial statute if that's what the proper
name is, that you drafted...was this later, subsequently supplanted by
legislative enactment?
Justice Brennan:
You know, I don't know. I suspect it probably has been in the
intervening years. We're talking about twenty years ago.
Mr. Lane:
Oh, yes. Okay, well...
Justice Brennan:
Let me just take a look here.
Mr. Lane:
The reason that I bring this up is that when I arrived in early
1976 and T.G. Kavanagh was called over to the Appropriations Committee and they
scrubbed him over pretty good about the amount of money at that time that was
flowing into this thing and one of the beefs was, on the part of...
Justice Brennan talks about the creation of the State Bar Grievance Board in 1969, his Law Day address to the state legislature on the matter, and the creation of a "Crash Program" to handle the case backlog from the 1967 race riots in Detroit.
Mr. Lane:
...book we're in...
Justice Brennan:
This is from Volume 383 of the Michigan Reports, and it is in
the front part, the appendix or whatever they call it...
Mr. Lane:
The Roman numeral..
Justice Brennan:
The Roman numeral..that looks like XXXVI, and it says "The
administrative order 1970-1, adopted March 13, 1970...", so that was when I was
Chief Justice..."...in the matter of establishment of state-wide defender
system whereas the Michigan Commission on Law Enforcement and Criminal
Justice..." of which I was a member. As Chief Justice, I sat on that
Commission. "...has approved a grant of $40,000 and indicated its intention to
provide an additional $30,000 for the establishment of a state-wide appellate
public defenders system conditioned upon the establishment of a commission,
pursuant to the rule making and superintending control powers of the Supreme
Court. It is ordered that a state- wide appellate public defender commission be
established subject to the superintending control of the Supreme Court composed
of three members to be recommended by the Supreme Court, one member by the
Court of Appeals, one member by the Michigan Judges Association, two members by
the State Bar of Michigan and appointed by the governor for terms of two years
each". There's the order, and if that doesn't sound like legislation, I'll buy
you a new hat, but it was quite a bold and I would say in one sense, liberal
thing to do. In the area of administration, I was a very liberal sort of guy. I
mean, I was a doer. I felt I was, anyway.
Mr. Lane:
Did Milliken then appoint the members?
Justice Brennan:
Oh, yes, he cooperated fully and appointed two members of the
State Bar of Michigan and one member of the Michigan Judges...two members of
the State Bar of Michigan and appointed by the governor for terms of two years.
Then in the very same volume, 383, there is a substantial amendment adopted
December 15, 1969 and effective March 1, 1970 of the standards of conduct for
lawyers, and Rule 15 which appears on page...that looks like about...I don't
know if I'm that good at reading these things..."XLIV". What would "XLIV"
be?
Mr. Lane:
That would be 94? Is "L" one hundred? No, "C" is one hundred.
"XL" would be 44, wouldn't it? "L" is fifty?
Justice Brennan:
I guess, so that's forty-four. Okay, I see what you're saying.
It's "X" before "L" and "I" before "V", so it's ten short of 50 and one short
of five, so you're right, 44. On Roman numeral 44, Rule 15 preamble: "There is
hereby created within the State Bar of Michigan the State Bar Grievance Board
which shall be and which shall constitute the arm of the Supreme Court for the
discharge of its exclusive constitutional responsibility to supervise and
discipline the members of the State Bar of Michigan", so then the board is
created, the composition and here's the interesting thing..."The State Bar
Grievance Board shall consist of three lawyers appointed by the Commissioners
of the State Bar, two lawyers appointed by the Supreme Court, and two laymen
appointed by the Supreme Court". We were the first state that I know of to have
laymen on our State Bar Grievance...Lawyer Grievance and Disciplinary body.
That...
Mr. Lane:
Excuse me, I'm beginning to see some things now. I'm a good
friend of John Murray's. You appointed him, and probably he was T.M....
Justice Brennan:
He was T.M.'s appointee, I remember.
Mr. Lane:
You see, there would be a form of distortion that would come
through...you're the Chief Justice. Here's this guy. What the hell does he know
about John Murray, but the point is...
Justice Brennan:
Obviously, the Court all agreed to this thing and participated
in it.
Mr. Lane:
Certainly.
Justice Brennan:
And I recall now that Tom nominated...suggested John Murray and
nominated him. I thought he sounded like a good guy.
Mr. Lane:
Oh, he's a heck of a guy, and he was a great credit to that
operation. But you know, I'm going to ask you before we get off of this, if you
won't for the tape, provide the setting a little bit of why this was necessary,
what did it accomplish, how it came about...
Justice Brennan:
I'll be glad to do that, Roger. The background, and I don't
know how accurate my details are going to be, but in broad-brush, there was a
lawyer in Howell by the name of Martin Lavan.
Mr. Lane:
A rascal.
Justice Brennan:
His reputation was as a rascal. I cannot tell you any of the
details of what kind of mischief he was involved in or allegedly involved in.
It seemed to me that it had to do with probate cases or a probate case which
was either...where the estate was open too long or where the lawyers were
alleged to have gotten too large a fees or diverted assets or whatever they
were supposed to have done, but Howell in Livingston County in those days, and
I think probably still is, is one of those places where confrontation seems to
flourish and prosper. I don't know why, but there are certain parts of this
earth where human beings tend to be more confrontational than others.
Mr. Lane:
Well, the Ku Klux Klan does pretty well down there.
Justice Brennan:
I don't know. That's possible. In any case, and that may have
been part of it, too. I don't know...Lavan, I think, was Catholic, and I don't
know if they had any of those in Howell before he came, but suffice it to say
that he was in big trouble and that the Free Press or somebody had gotten on
that thing, and what came out of it was a series of articles, among other
things, criticizing the way in which lawyers discipline themselves, and up
until that time, we had to go to the Ethics committees and the State Bar of
Michigan was involved in the discipline of lawyers, and they had a somewhat
complicated process of voluntary lawyer discipline. It was done by unpaid
lawyer volunteers who would be selected to serve on these various panels of
hearing officers and so on and so forth. I seem to recall that the story of the
Lavan case was one of State Bar discipline which was extraordinarily slow,
bureaucratic, repetitive, and the cry was white wash, that this was a white
wash, that the Bar was not being responsive and responsible to discipline its
members, and that was of a hue and cry which would have been going on in late
1968, maybe early 1969, and it was part of the background for the speech that I
gave to the State legislature on 5/1/69. Let me tell you a little bit about
that because that was another of the somewhat substantial accomplishments of my
administration. I asked the legislature if they would hear me give a talk to
them on Law Day. I felt I had a lot of things to say to the legislature about
the courts and so forth, and I started off by expressing my appreciation for
their invitation.
Mr. Lane:
Excuse me. Did this idea spring just fresh out of your head or
did you...was there some inspiration for it or did somebody suggest it
or...what was the origin of it from that sense? This was the first time,
right.
Justice Brennan:
This was, to my knowledge, the first time that this was done,
and it was my idea. I said...no, apparently it was not because I started off by
saying, "This is not the first time a Chief Justice has come down to this
chamber to speak with the legislature. I hope it will not be the last". It
seems to me that Dethmers told me that he had made a speech to the legislature
at one time. "...I hope it will not be the last for it seems to me that the
judicial branch of the government is equally as important as the executive and
the legislative, and it seems to me that communication between the judiciary
and the other two departments is not always what it ought to be. Just as it is
desireable for the Chief Executive to come here annually and describe the state
of the State, so also I believe the Chief Justice should be willing to come
from time to time and share with you some thoughts about the state of the law.
Law Day, this day set aside for all Americans to consider and grow in their
appreciation of the rule of law is a proper occasion for us to look at the
state of law in Michigan". Then I went on to talk about how things were going,
and incidently, I had invited all the judges in the state to come, to put on
their robes and the whole legislative chamber was ringed with these black-robed
folks. Interestingly, I said "reforms in the administration of justice do not
come easily or quickly nor should they. New Jersey's former Chief Justice
Vanderbilt was fond of saying that judicial reform is no sport for the
short-winded". I went on to talk on that occasion about, among other things,
the discipline of the bar. Let me see if I can find what I said about that,
because this sort of was just before or just after we adopted this new
grievance procedure. I want to see what I said to the legislature about
that.
Mr. Lane:
What is the date? Is this 1969 or 1970?
Justice Brennan:
1969.
Mr. Lane:
Was it 1969?
Justice Brennan:
Yes.
Mr. Lane:
You'd only been Chief Justice for a couple months.
Justice Brennan:
I'd been Chief Justice for a couple months, yes. Oh,...because
of this Lavan episode, there was a call in some public circles, newspaper
editorials and among some legislators for the adoption of Attorney Licensure
provisions...let's put the lawyers under the Bureau of Licensing, Professional
Licensing, and if you were uninitiated, uninformed, and you read the newspaper,
you might have the feeling that lawyers weren't licensed, and that somebody was
trying to make sure you had to have a license to practice law.
Mr. Lane:
Well, I think Tom Sharpe had a billing in all this.
Justice Brennan:
Possibly did.
Mr. Lane:
See, that was his territory.
Justice Brennan:
Exactly, and so I wanted to make sure that the legislature
understood that...it wasn't necessary for them to pass a law to license
lawyers. I said, "No one is permitted to practice law in this state without a
license. The license to practice law is issued by the Supreme Court of Michigan
only after proper proof that the applicant has the qualifications of education,
aptitude and moral fitness which would equip him to accept employment from
members of the public as an attorney and counselor and which ready him to
participate in the administration of justice as an officer of the court. That
license to practice law is a privilege and not a right. It can be taken away
for good cause at any time by the same authority from whence it was granted -
the Supreme Court, acting through the State Bar of Michigan. No other
profession is regulated as completely or judged as sternly as the practice of
law. Lawyers by their calling are engaged in continual conflict. In every law
suit, one side wins and the other side loses. Dissatisfied clients are a
natural occupational hazard for attorneys, distinguishing between legitimate
and improper complaints against lawyers is always a delicate matter.
Nevertheless, the number of lawyers annually disciplined, suspended and
disbarred far exceeds the number in other professions. Like no other
profession, lawyers accept their just debts of professional honor. They accept
their responsibility to be literally their brother's keeper. They recognize
that no lawyer can enjoy public esteem and public confidence so long as some
few members of the profession violate sacred private trusts or fail in grave
public duties". Here again, I talk about what we just said. "Only recently the
Supreme Court again demonstrated its concern for the integrity of its Bar by
adopting new rules requiring that formal disciplinary actions against lawyers
be made public". The Court directed that first. Until that time, even the
formal complaint was in camera. "The Court directed that further, more far
reaching renovations be set in motion so that the workings of professional
discipline can be more efficient and more worthy of public confidence". I had
been talking about "being tarred with the same brush" as somebody, okay, and I
talked about it in the context of judges because there had been some criticisms
of judges. I don't know...and the Tenure Commission had just been created to
discipline judges. I talked about the fact that..."We now have the best, most
modern appliances to clean our own house", talking about the judges, now..."If
the courts fail to gain and hold public respect because of the misconduct of a
few judges, we will have only ourselves to blame, and the wide tar brush by
which our public repute is sullied will mark us all with equal cause". When I'm
talking about the lawyers, I said, "Here again, the wide tar brush of public
disapproval which marks us all marks fairly. We cannot escape its stroke so
long as we have skeletons in our closets and the keys to the closet doors in
our own hand". So,...
Mr. Lane:
That's a little poetic touch.
Justice Brennan:
Yes, I guess so. But at any rate, what I was trying to say was
that it's our baby and we'd better fix it and be responsible for it. This
reference, I think, had to do with Lavan. "Neither can the courts escape
responsibility for the pernicious evil of justice delayed. Estates which hang
fire year in and year out damage actions which await the enpanelment of juries
while seasons slip by. Persons accused of crime who languish in jail for months
on end and a suffering public which must endure continued harassment by
criminals out on bond, all of these things fall like a guillotine on the neck
of the judiciary". Then we went on to...
Mr. Lane:
If you'll pardon the observation, it sounds like you wrote your
own speech.
Justice Brennan:
Oh, I did. I wrote every word of this and all these other
volumes of speeches. I love to write speeches.
Mr. Lane:
Well, you know, my observation is not just a throw-away remark.
This is intended to inform people that may be listening to this someday that
this is not entirely the custom nowadays.
Justice Brennan:
I guess. It's one of those...
Mr. Lane:
Nor is it the custom for Justices of the Supreme Court always
to write their own opinions really, in the sense that it used to be.
Justice Brennan:
Well, I always did that, and maybe we'll have time to get to
that before we're done here, but I may say just as an interesting sort of side
observation a couple things. In that speech, I talked about the consolidation
of Recorders Court and the Common Pleas Court and so forth. Later on, while I
was Chief Justice, we created the Crash Program down in Detroit. Bob Krinock
who was my assistant and I went down and literally opened up the old Recorders
Court Building. The Frank Murphy Hall of Justice had been constructed next door
to it, across the street, rather, and the old Recorders Court Building was
empty. There were literally thousands of criminal cases pending in Detroit that
were the sequelae of the 1967 race riots, and here we're talking 1969. It's two
years later, and these cases haven't been disposed of, and it was a scandal. I
set out to have what was called a Crash Program. I mean, Bob Krinock and I
invented the word, the phrase "Crash Program", and we got the Supreme Court to
give me the authority to go ahead and get on with this Crash Program. I
appointed...
Mr. Lane:
Was this 1969 or 1970?
Justice Brennan:
1969. And I remember the day we went down to the old Recorders
Court Building and knocked on the door, and the caretaker came to the door. He
was the only person in the building. I introduced myself as Chief Justice of
the Supreme Court and Bob Krinock as my assistant, and I said, "We're here to
look at the courthouse to see what we can do to re-open it and use it for the
Crash Program to hear these criminal cases". Well, this fellow had no idea what
was going on or whatever except that he was in the presence of the Chief
Justice of the Michigan Supreme Court, and he was full of "Yes, sir's", and
"No, sir's" and "Please" and "Thank you", so I went through the building with
Bob taking notes and saying, "Now, Bob, we'll move this wall and we'll do this,
and we'll open that door, and that can be locked off, and we could have the
elevator on it to here and to there and so on". "Got that, and got that". This
caretaker, he is running around making notes right and left, and no question as
to whether or not we'd ever talked to the mayor of the City of Detroit, whether
we'd ever...had the approval of the City Council. I mean, this building
belonged to the City of Detroit, and it was closed. I was about to re- open it
without so much as a by-your-leave from anybody, you know, or any money or any
budget or anything like that, so you know, we got through with the building and
I said, "This will be fine. Now, Bob, what we're going to do is we're going to
get all these district court judges from Wyandotte and Oakland County and St.
Clair, Michigan, and Grosse Pointe, and Livingston County, circuit judges,
whoever can spare us the time. I want all these people signed in here. I want
every one of these courtrooms filed". "Where are we going to get the bailiff?"
"They'll bring their own bailiffs. They'll bring the police officer from
Inkster and the police officer from River Rouge and so forth, can come with
them, and they can bring their own clerks, and if we have to hire court
reporters, we'll get them out of the yellow pages of the phone book", and I'm
just going around, you know, announcing all these things. Well, you know what?
We did it. We did exactly all those crazy things that nobody really questioned
that we had the authority to do it. I mean, the Supreme Court gave me sort of a
blanket mission to go down and do something about these cases. Within a few
weeks, we had the building open. We had literally a dozen or so, at least a
half-dozen, maybe eight or ten judges sitting down there. In due course of
time, we promulgated or Bob Krinock promulgated at my request what was called
the Krinock plan which was my long-standing scheme to try to administratively
bring the Recorders and Circuit court together, even though by statute, they
still weren't one court but just to get them being administered as one court. I
can remember Bob DeMascio was the presiding judge at the Recorders Court and
Joe A. Sullivan was the presiding judge at the Circuit court and I remember one
occasion where Bob Krinock and I had lunch with Bob DeMascio and Joe Sullivan
at Carl's Chop House down in Detroit in an effort to try to get the two courts
working together and what I was trying to do was to get the two courts to
appoint a czar, and I wanted Joe Sullivan to be the czar. That meeting went
through lunch with a couple of drinks and then a few more drinks and the
meeting continued. Pretty soon, we were having cocktails before dinner, and
then we were having dinner. I say the meeting went on from about noon until
maybe 10:00 p.m. I can't tell you that we accomplished a great deal but we did
make some progress. The Crash Program really continued, I'd say, for maybe a
year or eighteen months anyway and significantly cleaned up the criminal cases
remaining from the riots, and again, it became, the Crash Program became an
institution. You know, where there was the Crash Program; we all knew about
that, you know, and the legislature had to provide money for the Crash Program.
Well, the Crash Program just became a fait accompli and an established part of
our administration of justice for that period of time. Really the only thing
that got it going was a certain amount of chutzpa.
Mr. Lane:
How do you spell chutzpa?
Justice Brennan:
I think it starts with a "ch". Anyway,...
Mr. Lane:
Before you leave the subject, I think it's...I would like to
hear your evaluation of the importance of that change in the grievance
machinery and the fact that this has a continuing problem that today, or you
know, in recent times and certainly in the future will continue to get
attention for the serious problem that it is. I just thought it necessary to
point this out.
Justice Brennan:
One of the problems...one of the phenomena that I observed all
these years and these things...to be sort of common is the human tendency to
address process as a means of resolving difficulties. When you have a Martin
Lavan who filches money out of an estate, let's say for example, and it gets
bad press and something has got to be done about it, there is on the one hand a
human cry to draw and quarter Martin Lavan and oftentimes, the person who is in
trouble does in fact get run out of town on a rail or whatever. But at the same
time, there is this thrust to improve the process. "Let's create a more
powerful grievance board. Let's put lay persons on the grievance board so that
in the future, these things won't happen, so that the layman's point of view
will be expressed. Let's, as we did, increase the bar dues from a nominal
$35.00/year or whatever it was to a $100.00/year so we can afford to hire
full-time professional grievance investigators and administrators, so that
these things won't happen again in the future". Now, we did, and at the time,
it was hailed or at least recognized as a responsible and reasonable thing to
do. In my opinion, the Court after I left it, made a serious mistake by
chopping the grievance board in two. They bifurcated the process and what they
did was, somebody said, "Well, we can't have the grievance board prosecuting
people and at the same time sitting in judgment on those people, so we've got
to have an attorney grievance panel or grievance administrator who is sort of
like the prosecuting attorney and over here, we have to have the attorney
discipline board which will be like the judge and sit in judgment on whether or
not the attorney ought to be disciplined". In my opinion, that was a mistake.
In the first place, there are all kinds of administrative agencies that
function in a quasi judicial fashion, and every prosecuting attorney has to
decide whether he thinks somebody is guilty or innocent before he decides to
issue a warrant, so in the sense of deciding guilt or innocence, everybody
connected with it. The policeman who stops you on the street has to make a
judgment about whether you're guilty or innocent before he proceeds with giving
you a ticket, but that's not the determination of guilt of innocence that
really counts. Eventually, some kind of judicial officer has to make that
judgment, and in the case of lawyers, the decision is made by the courts as I
said in my speech. It is courts who issue the license. It is the courts that
take it away, that take it away, and the function of the grievance commission
is to ferret out those lawyers that need to be disciplined and recommend the
discipline to the Supreme Court. The Supreme Court may or may not buy what the
commission is coming to them with, but the commission has done its job if it
prosecutes the people. But somehow or other they got the idea in their head
that the Supreme Court doesn't do this, "we've got to have this attorney
discipline board which is disciplining the lawyers". I don't...in the long run,
I don't think they can really do that. What they've done, however, is to make
the process more complicated and more expensive than it needs to be, and
perhaps it is now being dragged out longer. But to get back to this proposition
process. We created the process. While I don't like the bifurcation of it, the
Attorney Grievance Commission remains, if you look at just that half of it,
substantially as we created it back in 1970. But it doesn't mean it is always
going to work. I mean, the fact that you have a wonderful constitution for the
United States and a wonderful set-up for government for Congress and the Senate
and the President and so on doesn't mean you're always going to get good people
or the people who are elected are chosen to serve us in those capacities are
always going to discharge their duties responsibly. Bob Waldron and I are fond
of saying to each other a phrase that we picked up somewhere along the line,
"You got to get up early in the morning and fight for freedom, and you've got
to fight for freedom all day long until you're tired and go to bed at night and
then you got to get up in the morning the next day and fight for freedom all
over again", and it's kind of an amusing thing, routine that we do, but the
concept that eternal vigilance is the price of liberty is very real in
ordinary, in the ordinary affairs of men, and eternal vigilance, watchfulness
over the activities of the Court or the Attorney Grievance Commission or
anything else is simply a necessary reality. I don't think...my point is that I
don't think improving the process is always the answer. I think if you get a
decent process in place, you'll get good people.
Mr. Lane:
This is in accord with your, in a general way, with your
response to my question about selecting a Chief Justice. At least the
implication in that question that maybe there's a better way, you said process,
the mechanics of it, well, if they work at all, depending on the people and the
workings of our system, they'll be okay, in so far as it...
Justice Brennan:
I don't mean to suggest that the process can't be improved, and
probably should, you know...should always be under review or reconsidered, can
it be improved in one way, shape or form. I'll give you an example. I think
passive restraints have some value. Certainly, the best way to control the flow
of traffic down the avenue is to time the lights. Time the lights and people
will all drive 35 miles/hour because who wants to rush up to the next light and
put on the brakes? The people who are the total experts in passive restraint
and moving people and so forth are the people down at Disney World. You go down
to Disney World, and you don't wait in line. You're moving up and down these
rows, roped off areas, and it doesn't feel like you're standing in line for a
long time at all because you're always moving, and they're aware of that, and
they can manage the herd by putting you into those things, and people are moved
onto this ride, and moved off, and the speakers are announcing at all times,
and "keep to the right", and this and that, and I'm sure that those...you get
human behavior to follow certain patterns with good process, and I think the
people who founded our country and wrote the Federalist papers had a real good
sense of process and how best to maneuver people within certain structures. So
I don't mean to suggest that process can't be improved and that it shouldn't be
improved, but at the same time, there's this other concept that good people
will make any system work and that bad people, regardless of how good the
system is, will not do well.
Mr. Lane:
In part, you were saying, if I may paraphrase it, there's an
excessive public naivety and faith invested in jittering with the mechanics of
something. Once there's been a failure and it's recognized, and as you say,
draw and quarter the guy, then they've got to do the fix-up and people have a
naivete about the human capability of a fix-up to solve all problems
forever.
Justice Brennan:
I agree. I think that's a good point, and I was trying to
struggle with what you said better and faster. Where are we now? What are we
talking about?
Mr. Lane:
Well, we were in the speech in 1969, the speech, and you
mentioned the SADO, the Crash Program and I think you want to say in connection
with that speech, the recommendation or whatever you said about statewide
financing or reorganization of the courts on a state-wide basis. Didn't you
want to bring that into it somewhere?
Justice Brennan:
That was the gist, as I say of the Krinock program and of
course, and...
Mr. Lane:
Was that related only though, as I thought you explained it to
the Detroit and Wayne County problem? Beyond that, did you not suggest to the
legislature that it was time to consider appropriating for the financing of
courts everywhere through the state process, or have I misread something?
Justice Brennan:
I will not say that statewide financing was my baby. In fact,
it was talked about and I think we...some of the first steps toward statewide
financing were taken during the time I was Chief Justice, but I have to believe
that it was probably somebody else's idea. I was never really crazy about it
although I can see where it has some value, and I certainly...I think
politically it had value because if you wanted to influence the way things were
being done in Wayne County or someplace else, the best way to do that was to
come up with the money, and if you were talking about coming into Wayne County
with a bunch of dollars to support their system, then you could have something
to say about how that was going to be.
Mr. Lane:
I think I got my cue from Devine. Mike Devine said, "On May
1st, Law Day, in the inaugural State of the Judiciary Address before a joint
session of the legislature, governor and robed judges throughout the state,
Chief Justice Brennan proposed statewide financing of the Court system,
including employment of all court employees by the unified court employer.
Justice Brennan:
Yes, that's...I don't think...maybe I'm wrong, but I don't
think that my emphasis was so much on financing as it was on organization. What
I...let me see...just hold on a second and let me take a look over here...
Mr. Lane:
I didn't want to get misplaced emphasis on something. I just
thought that this was a subject area that you'd want to at least recognize as
part of your speech on that occasion if it were true.
Justice Brennan reads portions of the speech given to the legislature in order to explain his court's proposal for statewide organization of the court system and the establishment of a Circuit Court in Detroit.
Justice Brennan:
Okay, I'll tell you. We're talking about judicial reform,
and...I said, "Our task is to make those changes only which seem fitting and
necessary to make the machinery of justice a more practical and useful tool in
our times, bearing in mind that we have the high and undelegable obligation to
pass along to our children not the best system we are capable of devising but
the best system that men have been able to devise from the dawn of history to
the day of our children's maturity", which is a way of saying we don't have an
obligation to sit down with a blank piece of paper and do the best we can in
terms of creating a system. Our obligation is to preserve what's come before
us, the wisdom of mankind and add to it whatever we're...we fairly believe
needs to be added to it..."In making the machinery of justice serve us better,
we're interested in two things: its efficiency and the quality of its product,
and these two areas, efficiency and quality, much has been done in recent
years, and the people of Michigan have a right to be proud of these
accomplishments. By mandate of the 1963 constitution, a single court system was
created in this state. Justices of the Peace and Circuit Court commissioners
were abolished. A four tier structure was launched...", and so on. I compliment
the organization of the Court of Appeals and talk about how well they've done,
talk about changes in the Circuit Court,..."A new generation of Circuit judges
taking office...the creation of the new District Courts by the legislature",
and I say in that regard, "In the creation of the new District Courts, this
legislature was given a tough assignment. Not only was it necessary for you to
harmonize the varied interests of diverse communities throughout the state,
placate concerned local officials, protect the rights of court personnel and
establish agreeable election districts, but you had to do all these things by a
2/3's vote of your own number. You are certainly to be congratulated for
adopting Act 154 of 1968 in the face of so many obstacles. You have created and
by its rules, the Supreme Court has implemented a statewide system of lower
court justice which ought to be the envy of the nation. The people have given
us good judges in the District Court. They are able and dedicated men and
women", and so on.
Mr. Lane:
Okay.
Justice Brennan:
Just one moment here...the judicial tenure commission.
Somewhere I talk about the abolishment of Recorders and/or Common Pleas Court,
and particularly, the question, the racial question involved in that. Let's see
what I said here...because I think it's...all right, here we're talking about
financially ..."Not sixty days ago, the Supreme Court presented to a committee
of this House of Representatives an expanded judicial budget and including
among other things a request for the necessary funds to put in motion a
temporary Crash Program to clean up civil and criminal dockets in Detroit and
Wayne County. This Crash Program would represent the first large-scale use of
another new constitutional tool in the administration of justice, the use of
former judges on special assignment where no vacancy exists. Just last month,
the court sent to you its recommendation for the consolidation of the Recorders
Court of Detroit and the Circuit Court of Wayne County including an outline for
a much needed District Court in Detroit", that would turn out to be the 36th
District Court..."The goal of making a Wayne County Court system uniform with
that of the rest of the state is one that has been long sought, long studied,
long recommended and long awaited. The technique which this legislature devised
in the District Court Act to protect pension rights, transferred judges,
secured the constitutional designation of incumbency on the ballot and bring
off an orderly transition of judicial business will be significant and useful
in this undertaking".
Mr. Lane:
That actually occurred ten years later, right?
Justice Brennan:
Yes. I talked about establishing a criminal division within the
Circuit Court that would take advantage of the expertise of those judges,
and...as a matter of fact,... "The second half of the Supreme Court's
recommendation for restructuring the courts in Detroit is equally urgent and
significant. It contemplates the creation of a District Court in Detroit having
two divisions, a Civil division with judges to be elected by the people of the
city at large and a criminal division, the judges of which would be chosen by
districts within the city". Now, here we were trying to do a couple things. One
was to preserve the jobs of the Common Pleas Court judges who were elected at
large in the city. At the same time, we were trying to provide a system where
there would be more black judges elected because that was a sticking point in
terms of the consolidation of the court and the creation of the District Court.
There was the concern on the part of the black lawyers and the black community
in Detroit that if they went city-wide, they would have most white judges.
Mr. Lane:
County-wide?
Justice Brennan:
City-wide.
Mr. Lane:
I beg your pardon.
Justice Brennan:
Remember, this is still back in the 1960's, and even at that
point in time.
Continuing to read from his 1969 Law Day speech, Justice Brennan talks about the election process for judges in the Detroit area in regards to concerns about racial equality and the establishment of a Criminal division of the Detroit District Court. He also describes the experience of giving a similar speech that elaborated on the issues with civil government to students at Michigan State University.
Mr. Lane:
City-wide.
Justice Brennan:
Yes, city-wide. We're talking about a period of time when Jerry
Cavanagh was still mayor of Detroit and after Jerry, it was Ray Gribbs so a
city-wide election still in those days generally resulted in a white person
being elected. If you looked at the racial composition of the Common Pleas
Court of Detroit at that point in time, I think it was still largely white. As
a matter of fact, I suspect that their names are right in here.
Mr. Lane:
But as they say, the demographics of the city were changing
rapidly and people understood that, and there was a lag of this in the
electoral results and what was actually happening in the neighborhood.
Justice Brennan:
Well, that was true, and what we were trying to do, I suppose,
was to get out in front of...
Mr. Lane:
Or at least keep up with...
Justice Brennan:
...the process by providing a method for judges to be elected
where there would be likely some black representation. This is in the front of
volume 382 of the Michigan Reports from May to December, 1969. Let's take a
look at the composition of the Detroit Recorders Court which was then elected
city-wide: Colombo (white), Crockett (black), Davenport (black), DeMascio
(white). That's 2:2. Evans (black), Ford (black)...that's 4 black, 2 white.
Gillis (white), Heading (black). That's 5 black, 3 white. Leonard, Maher and
Olson, all white. That's 6 to 5. Poindexter and Shemansky, that makes it 8 to
5, so at that point in time, you had still a predominance of white judges on
the Recorders Court and I'm going to guess that while they're not listed here
in the front of the book that the judges of the Common Pleas Court probably
represented about the same distribution. Traffic and Ordinance - Bill Haig who
was black and John Kerwin, and Andy Wood were both white, so it was a
2/3's.
Mr. Lane:
That's a pretty good approximation.
Justice Brennan:
All right, now, so we were shooting at a system that would, in
effect, guarantee the election of some black judges and as many proportionately
as one would expect in the city of Detroit because among other things, what was
happening and I think...I'm not sure just when...I think in those days, the
judges were still being elected in off-year elections, or maybe the elections
were then beginning to phase out, but in judicial elections whether off year or
otherwise, there is always a great fall off on the ballot from the major
political offices and judicial offices and local judicial offices and so forth.
There has always been the tendency for the black voters to go in and pull the
Democratic lever and leave whereas the voters in out in what was called the
22nd Ward and the 21st Ward, the far east and far west side of Detroit, to vote
all the way down the ballot. In any case, so what I'm trying to say was that
the whites were more...were more represented in elective office that their
population would have called for in the community. All right, so we talked
about a Civil division with judges being elected city-wide presumably where the
whites had the advantage and a criminal division, the judges of which would be
chosen by districts within the city which where the blacks would have had the
advantage. I go on to say, "The purpose of the dual election method is simply
this. The Civil division should embrace the present judges of the Common Pleas
Court assuring them the continuation of their terms of office, and valid
designation of incumbency in the same fashion as the judges of a Recorders
Court who would be transferred to the Circuit Court. The Civil division should
utilize the entire staff and experienced personnel of the Common Pleas Court
and should continue its centralized operation for the convenience of litigants
and jurors and for efficiency in maintaining its partial payment docket and
other programs of service to the general public. The Criminal division of the
Detroit District Court, however, would be staffed by no judges, and these ought
not only to be elected by districts within the city but considering the nature
of their work, these judges ought to be sitting and hearing their cases in
various locations throughout the city". We were talking about kind of a local
city hall or whatever type of thing that was coming in. "I can think of no
single step which holds the promise of so much impact on the urban crisis as
the creation of this kind of court. The function of the district judge in
criminal matters is to adjudicate misdemeanor cases, both traffic and
non-traffic, to issue warrants for the arrest of person suspected of crime, to
set bond upon persons arrested on felony charges and to conduct examinations in
felony cases, testing whether there be sufficient cause to hold the accused for
trial. In no other court is there so much contact with the public. From no
other court does the public derive so much of its opinions and attitudes about
the law, the courts and the administration of justice. Upon no other court does
the establishment of harmonious relationships between law enforcement officers
and the community so vitally depend and no other court is more directly
responsible for the carrying out of those firm and fair policies that
discourage crimes in the streets of our cities. Is it any wonder that the
Supreme Court has said to you that the judges of this court should be elected
by districts carved out of the city? An unshakable faith in the intuitive
wisdom of the good and free people tells us that there is no neighborhood
community in Michigan which does not have the capacity to police itself."Think about that. "An unshakable faith in the intuitive wisdom
of a good and free people tells us that there is no neighborhood community in
Michigan which does not have the capacity to police itself."
Think of that in
terms of Cass Avenue. Think of it in terms of what we used to refer to in
Detroit as "Black Bottom", and I really believe that. I mean, I believe that
people are capable of governing themselves and policing themselves. They don't
have to have white police officers from Livonia. They don't have to have judges
from Grosse Pointe. If the rest of the world was blown up with an atom bomb and
there was nothing left but that section of Detroit from Woodward to Livernois
and from Five Mile to the river, they'd have to govern themselves, and they
would somehow. I mean, they'd find...leaders would emerge, people would judge
each other, people would put each other in jail, and it would happen. That's
what I was trying to say here. I think if you're going to do anything about the
urban crisis, it's got to come from within. You can't bring in the National
Guard and make the people...to make the streets of the city of Detroit safe.
The people who live in those streets have to make their own streets save, and
the way you begin with it is to begin with civil, the organization of civil
government which is the beginning...which is the local courthouse, and local
officials. "There is no segment of our people so alienated from society that
given a local judge on a community court, it will not keep its own house in
order. For too long have the black people in our city been smeared by the wide
brush of public reaction to the crimes of some black men without having in hand
the tools with which to discipline their errant brothers. It is time we gave
them the tools. It is time we give the people of Detroit, neighborhood by
neighborhood and precinct by precinct, the judges and the courthouses to do the
job which must be done if our children and our children's children are to enjoy
the fruits of urban civilization".
Mr. Lane:
This is May, 1969?
Justice Brennan:
May, 1969.
Mr. Lane:
What was the response?
Justice Brennan:
Nothing.
Mr. Lane:
Did the newspapers ignore this?
Justice Brennan:
Yes. The newspapers...I thought it was pretty [expletive] perceptive
stuff, and candidly, it was a prescription for something. I mean, I'd
experienced the rioting in the streets of Detroit and so forth.
Mr. Lane:
You, in person, delivered this to the legislature?
Justice Brennan:
Oh, yes.
Mr. Lane:
Were the seats filled?
Justice Brennan:
Oh, sure. The place...
Mr. Lane:
...not for the judiciary speech anymore, you know.
Justice Brennan:
Oh, no. They were hanging from the rafters that day.
Mr. Lane:
They were?
Justice Brennan:
Oh, sure.
Mr. Lane:
I'll be [expletive]. So it wasn't that there was some kind
of...everybody gone to sleep.
Justice Brennan:
No, but it's interesting, because I gave two speeches that day.
I gave this speech which I labored over in Florida and another one which I also
labored over, later in the day, and the second speech I gave out at Michigan
State University. I can remember the State Police didn't want me to go. It was
1969 and it was...you know, anti-Vietnam War thing and so on, and I had to give
this Law Day speech, and oh, man, they hustled me in the back door and they
were terribly afraid I was going to get mauled.
Mr. Lane:
Kellogg Center or someplace like that?
Justice Brennan:
I think it was Fairchild Theatre. The room was...and that
morning, I had been before the legislature with all the robed judges, the
cameras and whole ball of wax. Now in the afternoon, I am out there at
Fairchild Center and the room is about 2/3's full of college students smoking
cigarettes, beards, their feet up over the chairs, in the God awful costumes of
the 1960's and in the unruly and surly manner that they had adopted in those
days. I go in with this speech, you know, the Law Day speech, of all things to
talk about...the rule of law to people, you know,...and so I went after it, and
I spoke about the cry for justice and "Where do they look for justice? To the
government. The government must prevent crime. The government must quiet the
students. The government must becalm the ghetto, satisfy the teachers, meet the
demands of the policemen, firemen and lower the taxes. The government must
abolish racism. The government must eliminate poverty. The government must heal
the sick, feed the hungry, clothe the naked, comfort the afflicted and
rehabilitate the criminal. All around us, men look to the government to secure
their happiness. Happiness without sacrifice, pleasure without pain, freedom
without responsibility and why shouldn't the people expect the government to
make them happy? Have not their ministers and priests and rabbis permitted them
to believe that the millennium is upon us? Have not political candidates led
them to believe that whenever government fails to secure their happiness, it is
the fault of those rascals on the other side of the aisle? Our forefathers were
wise enough to recognize that government...among men to protect life, liberty
and the pursuit of happiness. It was left to our generation to pronounce in the
constitution of one our sister states, California, that government is designed
to achieve happiness for all men. Oh, my friends, a government which is
expected to achieve happiness for its citizens is a government which is
destined to fall. No government is eternal. None is all powerful. None is all
wise. Governments are human institutions guided by trembling human hands,
depending on imperfect human wisdom, speaking through halting human voices.
When people collude themselves into believing the government can answer all
their prayers, they make government their God and they become its preachers and
its slaves." Who said that? De Tocqueville. "By wishing the government could be
God-like does not make it so. Sooner or later the people will realize that it
is a false idol, a golden calf, more human than divine, more fallible that
infallible, more imperfect than perfect, and they become disenchanted. They
become disillusioned and disaffected. So long as government can bestow its
bounties upon them, they give it their support, but when its power wanes and
its fortunes are reversed, its money cheapens. They recognize no further cause
for loyalty, and they see that government as an alien power structure, an
impersonal establishment, a yoke to be roughly cast off and thrown aside. On
this Law Day of 1969, we are a free people in imminent peril of losing our
freedom. For too long have our people flirted with the deification of civic
government. For too long have we who are in public service flattered ourselves
into thinking that if we studied long enough, if we consulted enough experts,
read enough reports, held enough hearings and attended enough seminars, we
could adopt perfect laws, dispense perfect justice and achieve a perfect social
order in which all wants would be satisfied and all men would be happy. There
is still time to see ourselves as we really are".
Mr. Lane:
Did you get a hearing there?
Justice Brennan:
Jackie Teare thought this was a better speech than the one I
gave for the legislature, and she said this one had some pizzazz and some heart
and so whereas the one I gave to the legislature was dull, boring, so this was
not John Teare but his wife, Jackie.
Mr. Lane:
Did anybody get up and give you the raspberries?
Justice Brennan:
Oh, yes. They interrupted my speech. They booed, they hissed,
they yelled, and so on and so forth, at different times, mostly in the question
and answer period, because my sense was when I was giving this, they kind of
listened in a sullen sort of way, but at one point in time, somebody wanted to
make a speech something like that and shout me down and whatever, and I said,
"Look"..and I had the microphone so I could make more noise than any of them,
you know, and I just said, "Look, I'm the Chief Justice of the Michigan Supreme
Court. I worked my [expletive] off to get where I am, and I've got the
microphone, and I'm entitled to speak because I'm here, and I am where I am.
Someday you get to be the Chief Justice, you can have the microphone".
Candidly, I went nose to nose with them, and I thought that that came off all
right. I mean, it was one of those things that...
Mr. Lane:
This was a night time group?
Justice Brennan:
It was an afternoon thing. It was like about 4:00 p.m, 3:00 or
4:00 p.m.
Mr. Lane:
I don't know where I was during this period of time. I have no
recollection...
Justice Brennan:
You missed some of the fun.
Mr. Lane:
Well, I did.
Justice Brennan:
You missed some of the fun. Anyway, I thought this was pretty
good stuff. This was the best I was able to do, and I look back on it and I say
to myself, "Well,...
Mr. Lane:
I think it's worn pretty well.
Justice Brennan:
Yes, it's worn well in terms of things that have come to pass
since then. I re-read this Law Day speech that I was just reading to you a
moment ago about the problems with civil government and its limitations, and I
think to myself, "Hey, those words still have value" Obviously, de Tocqueville
said much the same thing, and I think of it terms of our current economy. You
know, the fact that we're looking at the recession of 1991. People say, "Well,
what happens if we have another depression?" I read somewhere recently that
somebody took a survey and said that over 50% of the American people are
currently expecting a downturn in the economy on the magnitude of the Great
Depression. Now, when you get that spinning in your head and think that people
no longer expect prices to go up, no longer expect that you can buy a house for
$50,000 or $100,000, it's going to be worth $150,000 and $200,000 and $250,000
down the line; no longer think that if I'm making $40,000 this year, I'm going
to make $44,000 next year and $48,000 the year after, and I'm going to plan on
this continued increase in personal revenue but are starting to think in terms
of "I buy this house and it's going to worth less. I take this job, and I'm
going to make the same or less in the future". If those are the expectations of
people, you can imagine what's going to happen.
Mr. Lane:
Are...
Justice Brennan:
Well, let me just finish this point because I think it's
important in terms of this speech. The difference between 1990 and 1930 is that
in 1930, the government had not guaranteed the economy but in 1990, the
government has guaranteed the economy. Think about that. The full faith and
credit that our government stands behind FHA loans, guaranteed student loans,
all kinds of...the FDIC, the SL whatever it is DIC, the Savings and Loan
Deposit Insurance Corporation. They're saying in the newspapers today that the
FDIC only has about enough money to last another year with the number of bank
failures that are expected.
He continues on to discuss government, economic stability, civil disorder, and the 1967 race riots in Detroit. He concludes by recounting the Senator Joseph Smeekens story from 1971, which concerned a fraudulent attempt to be admitted to the Bar.
Justice Brennan:
With...if the...you get to the point where if there is no money
in the Federal Deposit Insurance, and there is no money in the FHA and all the
rest of these things, what we're going to do if the government attempts to keep
its full faith in credit is we're going to print money, and what was the line
in here?...you expect government to do everything, to be able to do everything,
and it really can't, but when it attempts to do so...where is my prediction, my
dire predictions, okay? Yes, "So long as government can bestow its bounties,
they give it their support. When its fortunes are reversed, when its money
cheapens, they recognize no further cause for loyalty". Does anybody really
think that the patriotism of the people of the United States of American, that
their dedication to the constitution that was adopted in 1789 would last for
five minutes if they got hungry? Does anyone doubt that the people of this
country are as capable of rising up against the two hundred year old government
that we celebrate and smashing it and putting in its place a dictatorship or
whatever if times get tough enough? I mean, you go right...the average guy in
this country is Mr. Pragmatist. I mean, they don't give a hoot about the
process than the man in the moon. They pay lip service to the process as long
as it doesn't interfere with their own pocketbook, but boy, they'll go right to
the bottom line real fast, and the bottom line is, "Hey, I can't feed my kids".
The bottom line is, "They're shooting at me from across the street", or
"There's a [expletive] tank rumbling down in my subdivision". He couldn't care less
about Thomas Jefferson or Alexander Hamilton or any of those dudes, you know.
He's got a shot gun, I can guarantee you that, though...I really worry
about...I really worry about civil disorder coming about in connection with the
economy in this country with the government having overextended itself. You
know, I remember the riots of 1943 as a kid in Detroit, and I remember the
riots of 1967 when we could smell the smoke and hear the gunfire. It was only a
block from our house, and we saw people driving up in their cars on Moorington
Drive and opening the trunk and getting out and walking between the houses into
the back of the stores that were being looted, coming out with television sets
and putting them in their car and driving off. The same car would be back
twenty minutes later for another trunk full. You know, people act like animals
when civil society breaks down, and it breaks down when it loses its capacity
to have credibility, and you know, I remember going down to Detroit when I was
on the Supreme Court during that riot...
Mr. Lane:
You were just...
Justice Brennan:
After a couple days...I had just come on the Court. It was in
1967. That was my first year. We were living in northwest Detroit near Seven
Mile and Livernois in a big old house with six bedrooms and five bathrooms and
four fireplaces which I bought for $47,000, and I, with all this going on and
the smoke just a block away and I had to go to Lansing to meetings of the
Court, I didn't want to leave my family there alone. I finally decided to move
them out of town, so we locked up the house and drove out. Some of the main
streets were blocked. We found some side roads and eventually got on the
highway and drove up to Lansing. I put them, put the family in a motel
up...down near Cedar Street some place, Cedar and the freeway.
Mr. Lane:
Did you leave anybody in the house?
Justice Brennan:
No, locked up and Polly said she was afraid as we left that we
may never see the house again, you know. It was that much of a concern. I
wasn't that concerned about it, but I would have felt a lot more comfortable
having my family, and I had to go to Lansing anyway, so I thought I'd bring the
family up there with me. So, I got them ensconced at the motel and the first
thing I did was to turn around and go back to Detroit. I went downtown to the
Recorders Court and Vincent J. Brennan was then the Recorder and judge of the
city of Detroit, of the Recorders Court and I believe the presiding judge as
well. You know Vince?
Mr. Lane:
Oh, yes.
Justice Brennan:
Massive, imposing man with this deep voice and a lot of common
sense, later became a judge on the Michigan Court of Appeals. We're not
related. I used to say Vince is the good-looking Brennan and I'm the smart one,
and he would laugh, or I would say Vince takes care of the east side and I take
care of the west side, but...and he was kind of late to get married. Karen and
he were married when he was probably 35 or so, and for those years between, and
I was married at 21, so I was married maybe 14 years before he was, and those
years, every time we'd go out to a restaurant or a saloon in Detroit and run
into Vince Brennan, the most popular and sought after bachelor in Detroit, the
wives of us old married guys would swoon and say, "There's the catch of the
year", you know, and I think her heart was broken when he got married.
That...Vince was no longer around to chat with. But in any case, Vince, a great
man of common sense, had set high bonds, surety bonds. The whole system of
checking the people out and I.D.'s and everything else had broken down. They
didn't know who they were rounding up. They were rounding up people that were
giving them all kinds of names. They didn't know...they didn't have time to
book them all and so basically they just decided that they were going to set
high surety bonds on everybody and the only way you could get out of jail was
to have enough substance that you could come up with a $10,000 bond or whatever
the number was, right across the board.
Mr. Lane:
Did you go down there on impulse?
Justice Brennan:
I went down there because I was informed that Theodore Souris
on our court was down there and was representing to Vince Brennan that the
Supreme Court was very unhappy with his uniform high bond policy, that they
wanted...that he was going to be expected and the Court was expected to be
releasing people on personal recognizance, you know, to go back out on the
street. Vince was saying, "I ain't going to do it". My message to Vince was,
"This guy doesn't speak for the Supreme Court".
Mr. Lane:
Was he in fact there?
Justice Brennan:
Was Ted there?
Mr. Lane:
Yes.
Justice Brennan:
Oh, yes he was, and when I got down there and walked past all
these guardsmen and so forth with guns and standing around and identified
myself as the Justice of the Supreme Court, back through this check point and
that check point and on into the court and up to the presiding judge's
chambers, and the newspaper guys are around, and it was the bunker. I mean, it
was where all the action was going on at that moment in time. I was ushered
into the room and there was the Chief Judge Vince Brennan along with a couple
of other of the senior judges of the court and my good friend, Theodore Souris
from the Michigan Supreme Court sitting there, and the meeting was exactly as I
had heard it was, and Vince was being lectured by Souris about how to handle
the bond situation. Souris...I mean, he was not delegated by anybody, and we
had not met to discuss it at the Court, and so I just barged in and said,
"Vince, I want you to know that Ted here doesn't speak for the Court, and as
far as I'm concerned as a resident of the city of Detroit, with the bite of
smoke still ringing...still in my nostrils, I'm [expletive] glad you're setting high
bonds. You keep it up".
Mr. Lane:
Would this have been like on the Monday or Tuesday after the
rioting began?
Justice Brennan:
I couldn't tell you. I think it would be like Monday or
Tuesday, yes, after the rioting began. We had taken a priest friend of ours to
the airport when the rioting broke out. We knew nothing about it when we took
him to the airport and when we returned, began to hear some reports on the
radio and arrived back to our own neighborhood to see...
Mr. Lane:
Smoke.
Justice Brennan:
...smoke, and the windows were blown out of Jacobson's and
these other places, and street lights smashed and glass in the street, people
running around. So anyway, I had these experiences, and I worry about what can
happen in our society if things go sour economically. But...that was the great
Law Day, the two speeches.
Mr. Lane:
Let me...you know, there are some things that are not going to
get covered here, and we're going to have to make some arrangement...
Justice Brennan:
I'd be happy to come back with you and let's talk some
more.
Mr. Lane:
I assume that you probably want to go out for lunch, right?
Justice Brennan:
Yes, would you like to go and have lunch with the two of
us?
Mr. Lane:
That would be fine. The only thing is that I want to
accommodate, and you've got maybe fifteen minutes here, and I want to fit it
in. That's all I'm talking about, and it's a question of how to fit, and I'm
wondering whether I should suggest a couple of hit and run topics.
Justice Brennan:
Why don't you do that now, spend fifteen more minutes, and then
we'll go get a bite to eat and then if you don't mind, we'll adjourn for the
rest of the day because I've got some things I need to do.
Mr. Lane:
Good, okay. Here's a real change of subject. What do you
remember about John P. Smeekens?
Justice Brennan:
"Smeekens never weakens".
Mr. Lane:
That's a good start.
Justice Brennan:
Yes, the Smeeken story is this. Well, you know that Smeekens
was a state representative or...
Mr. Lane:
Senator.
Justice Brennan:
...senator for many years.
Mr. Lane:
Aspired to be a chairman of the party.
Justice Brennan:
Whatever, I guess.
Mr. Lane:
And Larry Lindemer just beat back his...
Justice Brennan:
As I recall, he was Catholic, a conservative, father of a large
family, and outspoken, noisy, and had been around a long, long time. He went to
law school. As I recall, as a commuter, he went to the Detroit College of Law
and graduated, and this whole episode began, as I recall, with a request that
Brother Smeekens be allowed to take an oral Bar examination and in fact, as I
remember, Stanley Beattie who was then chairman of the Board of Law Examiners,
importuned me on behalf of Smeekens, and said that he had approached him and
asked that this be done and so on, and Stanley in his wonderful way with his
imitation Harvard accent said, "And Mr. Justice Brennan, if there is any way
that you can do this consistent with your responsibilities, I should be
delighted to establish the examination". So anyway, the issue came up. The
background of it was this.
Mr. Lane:
We're talking about the first days or months of 1971, is that
correct?
Justice Brennan:
I'm guessing it would be, yes, 1971. It was after I was Chief
Justice.
Mr. Lane:
And Swainson and Williams had come on the Court?
Justice Brennan:
Yes, Swainson and Williams were on the Court, exactly. But the
story was that Smeekens had taken and failed the Bar examination maybe twice or
three times or some number of times before that, that he was a man getting on
in years, that he was ill, that he had cancer and that he was expected to die
very soon, and that the business of becoming, the goal of becoming a member of
the Bar was a goal that he had long sought, that he had gotten his legal
education with great personal sacrifice, commuting despite the burden of his
duties in the legislature and the burdens of his large family and all these
other things.
Mr. Lane:
How did this word reach you, do you recall?
Justice Brennan:
It reached us with a letter or a petition of some kind or
another from Smeekens or perhaps it was from the Board of Law Examiners
requesting permission to give him this oral examination. And to do it out of
season. I mean, not to do the examination on the next time the Bar examination
is given, but to literally call him in and have an oral examination right then
and there or very soon, as soon as the Court would give it the green light. The
speeches were made around the table, particularly by the old-time politicians
that you know, good old Joe Smeekens was a great old guy, and he was an
adversary and we never agreed on anything, but he was always an honorable
politician, and his word was his bond, and all the rest of that stuff that they
say about politicians which is generally quite true.
Mr. Lane:
Who carried the ball?
Justice Brennan:
I can't tell you who carried the ball. I know that the
sentiment was universal around the table, "Aw, we ought to do what we can for
old Joe", okay? They were ready to just say yes to the petition that had been
presented by the Board of Law Examiners, let them give him an oral examination
and pass him. I said, "Wait a minute. I'm as much as the rest of you people
anxious to do something for old Joe Smeekens. He is a good old boy, and he's
going to die. Let's give him the honor that he wants" and so on and so forth,
but I said, "Gentlemen, we don't have to have a bar examination to do that.
This is the Supreme Court of the state. We are empowered to license people to
practice law, and we don't have to have anything but our own, four votes out of
at least seven guys is all it takes to become a lawyer. We could pick Joe
Schlunk off the street, call him in here, give him a bath and say, 'You're a
lawyer', so let us not...let's not demean our Bar examination system which is
designed to discover who has achieved that level of academic accomplishment and
knowledge of the law so that we can confer upon them the license to practice
law. Let's not demean that process by saying 'Okay, we're going to do a verbal
examination', because don't kid yourself. The verbal examination isn't a real
examination. I mean, it's a deceit, a creation to give this guy an honorary law
degree and if you do it for him, you're going to have to do it for everybody.
You're going to have every guy that has got a disease or an excuse or whatever
come in here asking for a verbal examination and how are you going to justify
the fact that you're turn the next guy down when you did it for old Joe, and
pretty soon, you've attacked the integrity of the whole process of examining
people for the Bar. If you want to do this thing as a gesture to good old Joe,
hey, you've got my vote, but let's do it flat out with no pretense that he's
passed the Bar because he hasn't passed the Bar". "Okay, well, can we do that?"
"Yes, we can do it". We all agreed we could do it. Gene Black was a great one
to say, he always pronounced the 900 pound gorilla rule, in these words, he
would say, "If we do it, who is there to gainsay us?", and that was the way he
described it. So we passed the resolution and we simply admitted Joe Smeekens
to the Bar, period. We ordered that he be sworn in as a lawyer, and we held a
ceremony in the Supreme Court of the state, and Joe and his family came and he
tottered down the center aisle of the courtroom looking as much as possible
like a man about to be called to his maker, so that we all were adequately
moved to express our approval of his accomplishments and welcome him as a
brother at the bar. Well, of course, it wasn't very long after that we
discovered that a miracle had occurred, and that Joe had miraculously gotten
well and in fact, the letter from the doctor didn't really say he had cancer
but just sort of said that maybe he might have, and that in fact, the wool had
been pulled over our eyes, and when all that was discovered, the Court, as
promptly and unceremoniously and as arbitrarily and capriciously as they had
granted the permission to practice law, withdrew it by an administrative order,
and Joe went back to being a non-lawyer after a short honorary time at the Bar.
That's the Joe Smeekens story.
Mr. Lane:
There was some recognition paid to appropriate process, though,
in de-shingling him, was there not? You know, the record shows that it wasn't
until 1977 that the Court finally completed the process of disbarring him.
Justice Brennan:
You mean they gave him due process before they took his license
away?
Mr. Lane:
I would think so from what evidence I've been able to...I
haven't examined into the thing, you know.
Justice Brennan:
Let's put it this way. I was not on the Supreme Court in 1977,
but if I had been, the process of lifting it would have been as short as the
process of granting it.
Mr. Lane:
396Mich719. Do you want to see it?
Justice Brennan:
396Mich719. Let me have a look. It would be interesting to see
if there was a grievance procedure or what. 319Mich.
Mr. Lane:
No, no, did I say 319. I didn't say that right.
Justice Brennan:
Give me the number again.
Mr. Lane:
396Mich.
Justice Brennan:
396Mich, okay.
Mr. Lane:
396Mich719.
Justice Brennan:
396Mich719, because I mean this was a matter of a fraud in the
inducement. This guy defrauded the Supreme Court of Michigan.
Mr. Lane:
And the people of the state.
Justice Brennan:
I mean, in granting him a license, so I would not have given
him five minutes worth of due process. 719 - State Bar Grievance Administrator
vs. Smeekens.
Mr. Lane:
What's the date on that?
Justice Brennan:
It is dated...decided June 3, 1976, rehearing denied.
Mr. Lane:
I'm sorry. I had the wrong date.
Justice Brennan:
"State Bar Grievance Board found Smeekens guilty of misconduct
and revoked his license to practice law, and he appealed". You see, that's what
happened. In the bifurcation of the Grievance process, the Grievance Board has
been apparently granted power to revoke people's licenses, so it isn't done by
the Supreme Court, it is done by the Board, and the Supreme Court only sits as
an appellate body. This is actually an opinion in the Supreme Court.
Mr. Lane:
Not a very lengthy opinion and doesn't say very much, but there
it is, and this was the instrumentality of...
Justice Brennan:
Kavanagh, Chief Justice, Levin, Coleman, Fitzgerald, Lindemer
and Ryan.
Mr. Lane:
What does it say about Williams.
Justice Brennan:
Williams took no part in the decision.
Mr. Lane:
Okay.
Justice Brennan:
Faithful to the end to his political honor.
Mr. Lane:
But actually, Smeekens was accorded ceremonial treatment in the
courtroom of the Supreme Court.
Justice Brennan:
Oh, indeed he was.
Mr. Lane:
I didn't know.
Justice Brennan:
As a matter of fact, I wouldn't be surprised if it wasn't in
the front of the books. I wouldn't be surprised.
Mr. Lane:
Back in early 1971. I have the date somewhere, but anyway, I
didn't want to belabor that too much. That was something to...
Justice Brennan:
Interesting.
Mr. Lane:
Let's see if there's a short one here. What's your attitude
generally...I put this down and then found I couldn't confirm that you had much
activity in this, but advisory opinions...the Supreme Court had made a rule
there...I know the constitution provides for them, and they got to be quite
numerous in requests in the late 70's and early 80's, and the court was being
asked to do all kinds of things and began to show some reluctance. What do you
have to say about advisory opinions?
Justice Brennan:
I'm not really thrilled with advisory opinions, quite frankly.
I'm kind of a traditionalist, and I think the case in controversy concept in
the United States Supreme Court is a good one and should generally be followed.
I had to write an advisory opinion early on in my days on the Court, and I
struggled with it. It's very difficult because the advisory opinion has to
focus on something. What are the issues? If you're being asked about the
constitutionality of a piece of legislation, you can only consider those
allegations of unconstitutionality that occur to you, or occur to
somebody...
Mr. Lane:
Frank Kelley..
Justice Brennan:
But there being nobody there saying that it is unconstitutional
for this reason and this reason and this reason, it is very difficult for you
to conclude that it is constitutional in any sort of meaningful way because you
can only say if this question is raised, we will come down this way and if that
question is raised, we will come down this way, but we haven't answered any
other questions because it never occurred to us to do so. I think that that's a
problem. I'm not really thrilled with them, and I think the idea of trying to
use the Supreme Court as the office of the Attorney General is not a good
idea.
Mr. Lane:
Is there anything worth saying about the quasi-rude ejection of
the Supreme Court from the Capitol?
Justice Brennan:
We could do an hour on the $0.50 parking episode.
Mr. Lane:
Well, that's part of it.
Justice Brennan:
But it was part of...