Higginbotham, A. Leon Jr., 1928–1998

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A. Leon Higginbotham, Jr. 1928–1998

Retired federal judge

A. Leon Higginbotham rose from humble beginnings to the bench of a federal court because he refused to be thwarted by the obstacles he faced. He fought to acquire an education, earning a place in an all-white high school that no African American student had ever attended. He left his first university because it would not heat the dormitory where African American students were housed. And despite being a Yale Law School graduate, groomed for the privileged life of a lawyer, he began his career as a public servant, working as a district attorney when white law firms rejected him.

Despite these difficulties, Higginbotham won political appointments that eventually made him chief judge of the U.S. Court of Appeals for the Third Circuit. He has been praised by Guido Calabresi, dean of Yale Law School, in the New York Times as “a first-rate judge, a sensitive judge, who is powerful in style and analytically strong.’” The late Thurgood Marshall, former Supreme Court Justice, told the Times, “I think he is a great lawyer and a very great judge. Period.”

Born in Trenton, New Jersey, on February 25, 1928, Aloyisus Leon Higginbotham, Jr., attended Ewing Park, a segregated public elementary school. His mother, a domestic worker, was determined to change things, however. “She knew that education was the sole passport to a better life,” Higginbotham told the New York Times, She set her sights on the city’s all-white academic high school, which required its students to have studied a year of Latin before they could be admitted. The course was not offered in African American elementary schools, however.

Although the school had never admitted an African American student, Leon’s mother refused to give up, hounding the principal until he agreed to enroll him. The school’s kindly Latin teacher volunteered to tutor Leon during the summer break. Looking back, Higginbotham realized how great an opportunity this was: “When I see students who went to Ewing Park with me now working as elevator operators or on street maintenance,” he continued in the New York Times, “I often wonder what their future would have been if the school had offered Latin.”

Weathered Racism

Graduating from high school at the age of 16, Higginbotham entered Purdue University, intending to become

At a Glance…

Born February 25, 1928, in Trenton, NJ; died December 14, 1998, in Boston, MA: married Evelyn Brooks; children: Stephen, Karen, Kenneth, Nia. Education: Attended Purdue University, 1944–46. Antioch College, B.A. 1949; Yale University, LL.B., 1952.

Career: Assistant district attorney Philadelphia County 1951–54; partner Norris, Green, Harris & Higginbotham, Philadelphia, 1954–62; special hearing officer for conscientious objectors, U.S. Justice Department, 1960–62; commissioner of the Federal Trade Commission, 1962–64; commissioner of the Pennsylvania Human Relations Commission, 1961–62; judge, U.S. District Court for the East District, 1964–77; judge, U S. Court of Appcais Third Circuit, 1977–93: counsel to Paul, Weiss, Rifkind, Wharton, 1993–98; professorat Harvard University’s John F. Kennedy School of Government, 1993–98; international mediator of first South African election in which blacks were allowed to vote, 1994; testified before the House Judiciary Committee against the impeachment of President Bill Clinton, 1998.

Selected awards: Raoul Wallenberg Humanitarian Award, 1994; Presidential Medal of Freedom, 1995; Spingarn Medal, 1996; numerous honorary degrees.

an engineer. He was one of only 12 African American students on campus, all of whom were housed in an unheated attic called International House. As fall turned to winter and temperatures plummeted, conditions in the dormitory became almost unbearable. “After December and January, going to bed every night with earmuffs on, sometimes wearing shoes and several pairs of socks, I decided to go and talk to President Elliot,” Higginbotham recalled in the New York Times.

Higginbotham intended to ask for nothing more than rooms in a heated dormitory, but the university president was unmoved. “If he had communicated to me, with some kind word or gesture, or even a sigh, that I had caused him to review his own commitment to things as they were,” Higginbotham continued in the Times, “I might have felt that I had won a small victory and could go back in the attic and sleep.” The president, however, was adamant. “‘Higginbotham” he said, “’the law doesn’t require us to let colored students in the dorm, and you either accept things as they are or leave the university immediately.’”

The memory of that confrontation rankled Higginbotham years later. “How could it be that the law would not permit 12 good kids to sleep in a warm dormitory?’ he asked indignantly in the Times. But Higginbotham did more than complain. He decided to abandon his engineering studies and pursue a law degree instead. He left Purdue and went to Antioch College in Ohio, where he earned a B.A. degree in sociology in 1949. Higginbotham went on to Yale Law School, graduating with an LL.B. degree in 1952. Finding work in law firms, however, proved more difficult than passing the bar exam.

Wearing a new suit purchased with money from a supportive professor and carrying letters of recommendation, Higginbotham interviewed at a Philadelphia law office where a fellow Yale grad, now a partner in the firm, was hiring. When he arrived at the office and announced that he was there for an appointment, however, the secretary was incredulous. They had not been expecting an African American man. When Higginbotham met with the Yale alumnus, he was told his credentials were impressive, but “of course, you know there’s nothing I can do for you,” Higginbotham recalled ruefully in the New York Times. The partner named a few African American law firms and suggested he try them. This was too much for Higginbotham and he stormed out, furious. His anger turned to tears in the lobby.

With help from his law professors, Higginbotham secured a year-long clerkship with a Pennsylvania Supreme Court justice, and returned to Philadelphia in 1953 to work as an assistant district attorney for Richardson Dilworth, the city’s prosecutor and another Yale graduate. He left in 1954 to become a partner in the African American law firm of Norris, Green, Harris, & Higginbotham, a group that handled civil rights cases as well as more mundane matters. During his ten years with the firm, Higginbotham also served the U.S. Justice Department as a special hearing officer for conscientious objectors, became a member of the Federal Trade Commission, and sat on the Pennsylvania Human Relations Commission—a group formed to improve race relations.

Youngest Federal Judge in 30 Years

In 1964, Higginbotham was appointed U.S. district judge for the Eastern District of Pennsylvania by President Lyndon Johnson. He was only 35-years-old, the youngest federal judge in 30 years, and at that time the only African American judge in a district court. Four years later, Higginbotham began his long association with the University of Pennsylvania Law School, where he eventually became a senior fellow. His political star still rising, he was briefly considered for the post of U.S. attorney general by President Jimmy Carter in 1976, and finally named to the U.S. Court of Appeals Third Circuit one year later. The appointment made Higginbotham the first African American member at the commission level of any federal regulatory agency. He became chief judge of the court in 1989, and chief judge emeritus, with a reduced caseload, in 1991.

Higginbotham was a prolific author during his legal career, writing over 100 articles. In 1978 he published his first book, In the Matter of Color: Race and the American Legal Process; The Colonial Period, an acclaimed treatise on the history of race and law in the United States. He was also the recipient of many honorary degrees.

In 1982, Higginbotham and other African American jurists were invited to visit South Africa and give a series of lectures. The country’s brutal apartheid system was very much in evidence, and the group was frequently followed, questioned, and even detained as they tried to visit different sites. “It was shocking and incredible to believe that in 1982 you can have the kind of repressiveness you think of Germany having in 1930,” Higginbotham told the Philadelphia Inquirer. “There are some analogies to pre-Civil War times. Every black had to have a pass [to travel] then, just as they do in South Africa.”

Defender of Affirmative Action

Not surprisingly, Higginbotham strongly favored aggressive government enforcement of civil rights and affirmative action, issues he had spoken and written passionately about. In a 1987 panel discussion on minorities and the Constitution, he deplored the Constitution’s failure to protect the rights of African Americans during most of the nation’s existence. “Under the original Constitution,” Higginbotham was quoted as saying in the New York Times, “blacks were not people.” He decried the hypocrisy of slave owners writing a document that defined freedom, calling the original Constitution “an exercise in nondisclosure” because it did not address the problem of slavery.

The painful climb of African Americans from servitude to freedom has been made possible by those who refused to accept injustice, Higginbotham asserted in a 1995 New York University speaking engagement that was quoted in the Wall Street Journal: “[Black people] are where we are [today] because of a level of protest which has gone on for more than a century.” Higginbotham has not been above registering protests of his own, as he did in 1990, when he pointedly declined to preside over a collegiate moot court competition because, as he told the New York Times, the University of Chicago Law School, which sponsored the event, “for two decades has not had even one black professor in either a tenured position or tenure-track position.”

Perhaps it was inevitable that when the conservative Clarence Thomas was appointed to the Supreme Court in 1991, Higginbotham openly voiced his opposition. In a scathing University of Pennsylvania Law Review article entitled “An Open Letter to Justice Clarence Thomas from a Federal Judicial Colleague,” reprinted in the Philadelphia Inquirer, he took Thomas on a verbal trip to the woodshed, berating the Justice for his supposedly “stunted knowledge of history and … unformed judicial philosophy.” Higginbotham compared his and Thomas’s careers to those of their grandfathers, whose lives were severely circumscribed by Jim Crow laws. Without the changes brought about by the civil rights movement, Higginbotham wrote, “probably neither you nor I would be federal judges today.” He cast Thomas as an ignorant and ungrateful beneficiary of the government programs he has opposed. Higginbotham wrote that in all of Thomas’s judicial career “I could not find one shred of evidence suggesting an insightful understanding on your part of how the evolutionary movement of the Constitution and the work of the civil rights organizations have benefitted you.”

The article soon received a flurry of media attention not usually given to law school reviews. The Chicago Tribune, Los Angeles Times, Wall Street Journal, and New York Times all ran articles, giving Higginbotham an even wider audience. The letter and its condescending tenor were privately criticized by other federal judges, who disapproved of Higginbotham’s public rebuke, especially since Thomas, as a Supreme Court Justice, was Higginbotham’s superior. Thomas Sowell, an economist with the conservative Hoover Institution and someone Thomas has publicly admired, deplored Higginbotham’s inability to find the moral and ethical standards behind Thomas’s opinions. “On every page,” Sowell told Facts on File, “Higginbotham’s article drips with the moral conceit that no one could possibly have differed from him for any honest or principled reason.” The letter, Sowell concluded was “a long, ugly, cheap attack.”

However, Higginbotham’s letter struck a chord with many others, particularly Anita Hill, whom some saw as a victim of both Thomas and hearings process. The letter was reprinted later in 1992, when it became the first chapter in the book Race-ing Justice, Engendering Power, a series of essays written in reaction to the Hill-Thomas issue. Higginbotham befriended Anita Hill, negotiated a million-dollar publishing deal for her with Doubleday in 1993 and coauthored a book, Race, Gender, and Power in America: The Legacy of the Hill- Thomas Hearings, with her and Emma Coleman Jordan in 1995.

On March 5, 1993, two weeks after his 65th birthday, Higginbotham retired from the federal bench. A few months earlier, his name had once again been mentioned as a possible nominee for U.S. attorney general, but he quickly quashed the notion, saying that he wanted time to pursue other interests. In his resignation letter to President Clinton, Higginbotham wrote “[I am] deeply grateful for the privilege to have served our country,” quoted the Philadelphia Inquirer. “In the years to come, in different venues and in different ways, I hope to continue to act to the benefit of our nation.”

Upon leaving the Third Circuit Court in 1993, Higginbotham became counsel to the international law firm of Paul, Weiss, Rifkind & Wharton. He also became a public service professor of jurisprudence at Harvard University’s John F. Kennedy School of Government. In 1994, at the request of Nelson Mandela, Higginbotham served as an international mediator during South Africa’s first election in which blacks were allowed to vote. He also provided counsel to the Congressional Black Caucus in a series of voting rights cases before the U.S. Supreme Court. Higginbotham also received the Raoul Wallenberg Humanitarian Award in 1994.

In 1995, Higginbotham delivered the keynote address at Purdue University on the anniversary of the birth of Martin Luther King, Jr. The address focused on how the Contract with America, an initiative passed by Republican legislators, would adversely affect race relations within the United States. Higginbotham delivered his address as an imaginary letter from Martin Luther King to then Speaker of the House Newt Gingrich. As reported in MIT’s school newspaper, The Tech, Higginbotham called the Contract with America “one of the most tragic hopes and potential cruelties in American politics.” He remarked further that the Contract with America disturbed him because “not once do you ]Republican legislators] say that you want to eradicate racial discrimination. Not once do you say that you want to eradicate gender discrimination.” The Tech also noted that Higginbotham implored Gingrich to use his power for the benefit of all Americans, “It is within your power to make our nation more fair than it has been in decades, or to make it more mean.”

President Bill Clinton appointed Higginbotham as commissioner of the U.S. Commission on Civil Rights in October of 1995. That same year, his years of judicial service were recognized when President Clinton awarded him the Presidential Medal of Freedom, the nation’s highest civilian honor. Upon receiving the award, Higginbotham told the Philadelphia Inquirer, “Some people look at 65 as a time when they can get their main pension, sleep late, and have a few cocktails. While I’m in good health, I really want to work on trying to implement what Martin Luther King’s goal was when he said, ‘I have the temerity to believe that people everywhere can have three meals a day for the body, education for their minds, and dignity for their spirit.’”

Higginbotham was hired by Texaco Inc. in 1996 to advise the company on diversity and personnel matters. Texaco had been sued two years earlier for racial discrimination after a tape, which allegedly contained the voices of white executives making disparaging comments about African Americans, was released to the public. As reported in Jet, Texaco chairman and CEO Peter I. Bijur welcomed Higginbotham’s appointment, “I want to ensure that Texaco’s policies prohibiting discrimination in the workplace are not mere rhetoric. As we move forward, Judge Higginbotham will evaluate our practices and make recommendations as to what our programs should be in the future.”

Higginbotham continued his passionate defense of affirmative action. In 1996, he addressed the U.S. Senate Judiciary Committee on the importance of maintaining affirmative action programs. Jet reported that “Judge Higginbotham urged the committee to be more sensitive to the needs of minorities and women and the historic racism and sexism they have endured.” Also in 1996, Higginbotham published the book Shades of Freedom: Racial Politics and Presumptions of the American Legal Process, and was awarded the prestigious Spingarn Medal by the NAACP.

In 1998, Justice Clarence Thomas was invited to speak at the National Bar Association (NBA) convention. The NBA is the largest organization of African American lawyers. Higginbotham, in an open letter to NBA members, criticized the appearance of Thomas at the convention. As reported by The Savannah Morning News, Higginbotham told NBA members that “it makes no more sense to invite Clarence Thomas than it would have for the National Bar Association to invite George Wallace for dinner the day after he stood in the schoolhouse door and shouted, ‘Segregation today and segregation forever.’” He also wrote, “I can’t believe that many organizations would be expected to invite someone as their major lecturer who has advocated diminution of that group’s rights.”

Higginbotham testified against the impeachment of President Clinton before the House Judiciary Committee in 1998. CNN reported that Higginbotham dismissed comparisons between the Clinton impeachment hearings and those that occurred during the Nixon administration, “There has never been…an impeachment proceeding on this minuscule level…Everyone talks about the Nixon experience, but that is as different, it’s the difference between zero and infinity.” He also argued that Clinton did not commit perjury, “Perjury has gradations. Some are serious, some are less. If the president broke the 55 mph speed limit and said under oath he was going 49, that would not be an impeachable high crime. And neither is this.”

Shortly after testifying before the House Judiciary Committee, Higginbotham was hospitalized after suffering several strokes. Friends had been deeply concerned for his health. One friend, U.S. Court of Appeals Judge Nathaniel Jones, told the Cincinnati Enquirer, “We all advised him to slow down. He said that in all struggles for justice, someone must fall. He felt that he was in a struggle for justice, and if it were his fate to fall, so be it.” Higginbotham died on December 14, 1998. Upon learning of his death, Harvard law professor Charles Ogletree remarked, “He was the epitome of the people’s lawyer. Despite his individual merits and accomplishments, he never hesitated to lend a hand to the poor, the voiceless, the powerless and the downtrodden.”

Sources

Chicago Tribune, February 16, 1992; February 19, 1992.

Cincinnati Enquirer, December 15, 1998.

Jet, October 16, 1995, p. 10; January 29, 1996, p. 6; December 16, 1996, p. 6.

New York Times, May 31, 1987, sec. 1, p. 44; December 15, 1989, p. B20; July 19, 1991, p. B7; February 14, 1992, p. D20; March 8, 1993, p. D8.

Philadelphia Inquirer, May 16, 1981, p. Bl; October 20, 1981, p. Bl; June 30, 1982, p. A3; August 25, 1982, p. Bl; November 11, 1982, p. B3; November 12, 1982, p. C2; January 23, 1992, p. A19; October 27, 1992, p. All; December 27, 1992, p. Fl; January 25, 1993, p. Al; February 2, 1993, p. Bl; May 27, 1993, p. Gl; June 15, 1993, p. B5; December 18, 1993, p. D12.

The Savannah Morning News, July 31, 1998.

The Tech, February 14, 1995, pp. 1, 14.

Walt Street Journal, December 1, 1995, p. A14.