COMMONWEALTH OF PA. v. LOCAL U. 542, INT. U. OF OP. ENG.

OPINION

HIGGINBOTHAM, District Judge.

INTRODUCTION

Defendants, Local 542, International Union of Operating Engineers, the Contractors Association of Eastern Pennsylvania and the General Building Contractors Association, Inc., have moved this Court pursuant to 28 U.S.C. § 144 (1970)1 to refrain from further participation in this case. In support of their motions, defendants have filed the affidavits of Robert Walsh, the business manager of Local 542, of Angelo A. Antonucci, the executive secretary of the Contractors Association of Eastern Pennsylvania, and of Charlson I. Mehl, the executive director of the General Building Contractors Association, Inc. Each of these affidavits alleges a personal bias on my part in favor of the plaintiff class in the instant action.2 For reasons that will hereinafter appear, I have concluded that these affidavits are, as a matter of law, insufficient to justify my disqualification as judge in the instant action. Defendants' motions for disqualification must therefore be denied.

I.

DEFENDANTS' AFFIDAVITS

In support of their motion for recusal, defendants allege in their affidavits:

1. That the instant case is a class action, brought under the Civil Rights Act of 1964 and other civil rights statutes, charging that defendants have discriminated against the twelve black plaintiffs and the class they represent on the basis of race, and seeking extensive equitable and legal remedies for the alleged discrimination;

2. That I will try the instant case without a jury, and that I am black;

3. That on Friday, October 25, 1974, I addressed a luncheon meeting of the Association for the Study of Afro-American Life and History, during the 59th Annual Meeting of that organization, "a group composed of black historians";*

4. That in the course of that speech I criticized two recent Supreme Court decisions which involved alleged racial discrimination, and said, inter alia, that:

5. That I used the pronoun "we" several times in the course of the speech, and that my use of this pronoun evidences my "intimate tie with and emotional attachment to the advancement of black civil rights";

6. That by my agreement to deliver the speech I presented myself as "a leader in the future course of the black civil rights movement";

7. That my speech took place in "an extra-judicial and community context," and not in the course of this litigation;

8. That the following day, Saturday, October 26, 1974, The Philadelphia Inquirer published "an article appearing under a predominant headline on the first page of the metropolitan news section, . . . describing the October 25th meeting and publishing the aforementioned quotes";3

9. That approximately 450,000 copies of The Philadelphia Inquirer containing this account were distributed publicly on or about October 26, 1974;

10. That this account made "the community at large" aware of my "significant role as a spokesman, scholar and active supporter of the advancement of the causes of integration";

11. That I believe "that there has been social injustice to blacks in the United States"; "that these injustices must be corrected and remedied"; and "that they must be remedied by extra-judicial efforts by blacks, including [myself]";

12. That "the very invitation to speak," "the content of [my] remarks" and my "posing for photographs" after the address identify me as "a leader for and among blacks," and "one of the country's leading civil rights proponents";

13. That I am a "celebrity" within the black community;

14. That "I [have] identified, and [do] identify, [myself] with causes of blacks, including the cause of correction of social injustices which [I believe] have been caused to blacks"; that I have made myself "a participant in those causes, including the cause of correction of social injustices which [I believe] have been caused to blacks";

15. That "in view of the applicable federal law," and by reason of my "personal and emotional commitments to civil rights causes of the black community, the black community expectation as to [my] leadership and spokesmanship therein, and the basic tenet of our legal system requiring both actual and apparent impartiality in the federal courts," my "continuation . . . as trier of fact, molder of remedy and arbiter of all issues constitutes judicial impropriety."

These allegations commingle conclusions with facts to an extraordinary degree. Conclusions, of course, are not relevant to this inquiry. United States v. Townsend, 478 F.2d 1072, 1074 (3d Cir. 1973); Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953). Even if they were, it is difficult to ascertain what defendants mean by certain of the conclusionary allegations they have made. For example, they state that my interest in these matters indicates an "emotional attachment." If, by "emotional attachment," they were implying that I believe that blacks should, in a nonviolent, rational fashion, strive to eliminate racial injustice, I would accept that characterization. If, by the use of the phrase "emotional attachment," they were implying a degree of irrationality, I do not accept that conclusion as a reasonable inference from either my appearance before the Association for the Study of Afro-American Life and History, or the contents of my speech to it, or the newspaper article reporting on the speech.

No matter what defendants assert in their conclusionary allegations, the factual core of their affidavits is the newspaper article in The Philadelphia Inquirer of October 26, 1974. The legal sufficiency of the affidavits stands or falls on the basis of what I said and did on the occasion of my October 25th speech, as reported in the Inquirer article of the following day, and on any rational inferences that can be drawn from that article.

II.

THE LAW OF DISQUALIFICATION

It is well settled that the mere filing of an affidavit under § 144 does not automatically disqualify me from hearing the instant case. United States v. Townsend, supra, 478 F.2d at 1073; Behr Mine Safety Appliances Co., 233 F.2d 371, 372 (3d Cir.), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Only the filing of a timely and sufficient affidavit will result in such a disqualification. United States v. Townsend, supra, 478 F.2d at 1073; Brotherhood of Locomotive Firemen and Engineers v. Bangor and Aroostock R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L. Ed.2d 560 (1967).

It is my duty, as the judge against whom a § 144 affidavit has been filed, to pass upon the legal sufficiency of the facts alleged in the affidavit. United States v. Townsend, supra, 478 F.2d at 1073; Simmons v. United States, 302 F.2d 71, 75 (3d Cir. 1962). I may not, however, question either the truth of the allegations or the good faith of the pleader. United States v. Townsend, supra, 478 F.2d at 1073; Simmons v. United States, supra, 302 F.2d at 75; In re Federal Facilities Realty Trust, 140 F.Supp. 522, 524 (N.D.Ill.1956). "[T]he section withdraws from the presiding judge a decision upon the truth of the matters alleged." Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); United States v. Townsend, supra, 478 F.2d at 1073; see Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077 (3d Cir. 1969).

My disqualification will not be warranted unless a § 144 affidavit "give[s] fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, supra, 255 U.S. at 33-34, 41 S.Ct. at 233; United States v. Townsend, supra, 478 F.2d at 1073-1074. Mere conclusions will not suffice to support such a disqualification. United States v. Townsend, supra, at 1074; Inland Freight Lines v. United States, supra, 202 F.2d at 171.

"Facts must be pleaded which show that there exists personal bias and prejudice on the part of the trial judge." Inland Freight Lines v. United States, supra, at 171; see Simmons v. United States, supra, 302 F.2d at 75. Disqualification will be warranted only if such a personal bias is shown. Ex parte American Steel Barrel Co., 230 U.S. 35, 43, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379 (1913); Gallarelli v. United States, 260 F.2d 259, 261 (1st Cir. 1958), cert. denied, 359 U.S. 938, 79 S.Ct. 654, 3 L.Ed.2d 638 (1959); United States v. Hanrahan, 248 F.Supp. 471, 476 (D.D.C.1965).4 The facts pleaded will not suffice to show the personal bias required by the statute if they go to the background and associations of the judge rather than to his appraisal of a party personally. Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077-78 (3d Cir. 1969); Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942). "[A judge] must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation. * * * the ordinary results of such associations and the impressions they create in the mind of the judge are not the `personal bias or prejudice' to which the statute refers." United States v. Gilboy, 162 F.Supp. 384, 400 (M.D.Pa.1958), quoting Ex Parte N. K. Fairbank Co., 194 F. 978, 989, 990 (M. D.Ala.1912). Of course, it goes without saying that "[a] judge cannot be disqualified merely because he believes in upholding the law." Baskin v. Brown, 174 F.2d 391, 394 (4th Cir. 1949). If the facts pleaded do not warrant my disqualification, I am not only permitted to continue to preside over the case, I have an affirmative duty not to withdraw. Simmons v. United States, supra, 302 F.2d at 75; In re Union Leader, 292 F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961); Tucker v. Kerner, 186 F.2d 79, 85 (7th Cir. 1950); United States v. Hanrahan, supra, 248 F.Supp. at 475; In re Federal Facilities Realty Trust, supra, 140 F.Supp. at 524.

III.

THE LEGAL SUFFICIENCY OF DEFENDANTS' AFFIDAVITS

The legal issue raised by defendants' motion is easily disposed of. I have examined the factual allegations of defendants' affidavits in the light of the law, as set forth above, which governs the recusal of a trial judge for reasons of bias or prejudice. That examination leads me inescapably to the conclusion that, as a matter of law, defendants' affidavits are insufficient to justify my disqualification.

Defendants base their motions on my remarks at the 59th Annual Meeting of the Association for the Study of Afro-American Life and History. Those remarks in no way manifest the personal prejudice and bias that must be shown in order to satisfy the requirements of § 144. Ex parte American Steel Barrel Co., supra; Inland Freight Lines v. United States, supra; United States v. Hanrahan, supra. They contain no reference to these defendants or to these plaintiffs or to this suit. They relate to my background and my associations, not to any party in this action personally, and are therefore insufficient to show the personal bias required by the statute. Parker Precision Products Co. v. Metropolitan Life Insurance Co., supra; Price v. Johnston, supra. In the words of Chief Judge Parker, they show "at most, zeal for upholding the rights of Negroes under the Constitution and indignation that attempt should be made to deny them their rights. A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence." Baskin v. Brown, supra, 174 F.2d at 394. The affidavits which recite these remarks are therefore clearly insufficient, as a matter of law, to justify my disqualification.

IV.

DEFENDANTS' AUTHORITIES

Because these motions for disqualification touch me personally, I resolved, when they were filed, to give defendants' arguments the fullest possible consideration. Accordingly, I carefully reviewed all of the cases cited by Local 542 in its memorandum in support of the § 144 motion.5 This research has convinced me that defendant's position, though rich in good faith, is devoid of merit. Each of those cases arose out of a factual context radically different from this one. None of them compels the result that defendant urges me to reach here. Only a handful of them, those in which a judge recused himself voluntarily when he had no legal obligation to do so, even suggest that result. And, for reasons that I will presently set out, I emphatically do not believe that these cases of voluntary recusal are apt precedents for my decision on these motions to disqualify.

Defendant Local relies primarily on the sweeping language of Justice McKenna in Berger v. United States, supra. Its reliance, however, is totally misplaced. In Berger, the affidavit filed in support of the motion for disqualification alleged that the presiding judge in an espionage trial, the Honorable Kenesaw Mountain Landis, was prejudiced against the defendants because they were German-Americans. The affidavit further alleged that Judge Landis had said, inter alia, that "[i]f anybody has said anything worse about the Germans than I have I would like to know it so I can use it"; that "[o]ne must have a very judicial mind, indeed, not to be prejudiced against the German-Americans in this country. Their hearts are reeking with disloyalty"; and that "[y]ou are of the same mind that practically all the German-Americans are in this country, and you call yourselves German-Americans. Your hearts are reeking with disloyalty." 255 U.S. at 28-29, 41 S.Ct. at 231. Unquestionably, these remarks, made in the context of an espionage trial with German-American defendants, gave "fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment," 255 U.S. at 33-34, 41 S.Ct. at 233, and amply justified the broad language of Justice McKenna's opinion. The instant case is altogether different on its facts. My remarks, as recited in defendants' affidavits, were in no way related to this case. They were addressed to a group of scholars, not to union men generally or to operating engineers in particular. They referred neither to the defendants here nor to the plaintiffs, neither to employment discrimination suits generally nor this cause in particular. They did not promise partiality to blacks in civil rights actions. If anything, they encouraged blacks to explore forums other than the federal courts for the redress of their grievances. While it is concededly difficult for a man to act as judge in his own case, I do not find that my remarks gave "fair support to the charge of a bent of mind that may prevent or impede partiality of judgment." Consequently, Berger v. United States, supra, is, on its facts, clearly distinguishable from the instant case. According to William Shakespeare, "Macduff was from his mother's womb untimely ripp'd." Macbeth, Act V, Scene VIII. Similarly, in an attempt to buttress defendant's memorandum, Mr. Justice McKenna's language in Berger was from its context irrelevantly "ripp'd."

The decision of the Court of Appeals for the Third Circuit in United States v. Townsend, supra, though liberally cited in defendant Local's memorandum, likewise provides scant support for defendant's position in this matter. In Townsend, the affidavit filed in support of the disqualification motion asserted, inter alia, that the trial judge in a prosecution for a selective service violation had said at a pretrial conference that "he felt a duty to pressure conscientious objectors into submitting to induction and that a uniform thirty months sentence was the best way to effectuate that policy." 478 F.2d at 1073. This allegation, said the Court of Appeals, was sufficient to show "a bent of mind that may prevent or impede impartiality of judgment." Id. at 1073-74. Again, the facts in this case are wholly different. My remarks were not directed to these plaintiffs or these defendants; they did not concern the issues that are controverted in this case nor did they intimate any view on the merits of this case. Defendant's reliance on United States v. Townsend, supra, is therefore manifestly misplaced.

Defendant also quotes extensively from Mr. Justice Frankfurter's opinion in Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1951), where he disqualified himself from participating in the Supreme Court's disposition of that case. In all candor, I must confess that this citation shed very little light on the issue before me. My respect for Mr. Justice Frankfurter is deep and long-standing. Nevertheless, his personal antipathy to the installation of FM radio receivers on public buses has absolutely nothing to do with the legal sufficiency of the facts alleged in defendants' affidavits. Mr. Justice Frankfurter's views on the propriety of disqualification are more accurately revealed by his conduct in United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941). Prior to joining the court, he had co-authored a classical critique of abuses by the federal courts of their equitable jurisdiction in labor disputes. F. Frankfurter and N. Greene, The Labor Injunction (1930). He had also helped to draft the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101 et seq. (1970), which was designed to curb these abuses. Yet in United States v. Hutcheson, supra, one of the leading cases interpreting the scope of the Act, he not only did not disqualify himself, he wrote the Court's opinion.

Similarly, as a United States Senator, Mr. Justice Black had been a principal author of the Fair Labor Standards Act, 52 Stat. 1060, 29 U.S.C. § 201 et seq. (1970). He nevertheless heard, and voted with the Court majority in, the case which upheld the constitutionality of the Act, United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941).6

The other cases cited by defendant are no more persuasive than Berger, Townsend and Pollak. In Peacock Records, Inc. v. Checker Records, Inc., 430 F.2d 85 (7th Cir. 1970), the trial judge had refused to accept testimony of witnesses to the effect that they had perjured themselves in an earlier trial of the same issues. The Court of Appeals held that the trial judge's prejudgment that the new testimony was perjured, a prejudgment that was not supported by the record of the first trial, showed sufficient prejudice to justify disqualification. That is not this case.

At issue in Morris v. United States, 26 F.2d 444 (8th Cir. 1928), were the timeliness and the good faith of the motion for disqualification. Neither of those issues is disputed here.

In Nations v. United States, 14 F.2d 507 (8th Cir. 1926), the affidavit held sufficient to justify disqualification alleged that the trial judge had stated, prior to trial, that the defendant was guilty of the crime he had been charged with. That is not this case.

In Schmidt v. United States, 115 F.2d 394 (6th Cir. 1940), affiants alleged that the trial judge had assisted the prosecutors in the preparation of their case against the affiants. Clearly, that is not this case either.

In Gladstein v. McLaughlin, 230 F.2d 762 (9th Cir. 1955), the trial judge had initiated, sua sponte, a disbarment proceeding against affiant. The latter's affidavit recited statements by the judge which demonstrated prejudice toward the affiant individually and toward a class to which he belonged. Not unnaturally, the Court of Appeals found the affidavit sufficient to disqualify the judge. Once more, however, that case is not this one. In Connelly v. United States District Court, 191 F.2d 692, 695 (9th Cir. 1951), the trial judge had stated his belief that petitioner was a Communist, that Communists hid behind the Constitution, that they "would overthrow that very document and the country that it rests upon," and that "the Communist Party was an illegal conspiracy to overthrow the government of the United States." Though the affidavit reciting these facts sufficed to justify disqualification, the case itself can scarcely be said to control the instant one. In Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954), such great antagonism had developed between the trial judge and defense counsel during a criminal trial that the Supreme Court held it appropriate for another judge to preside over criminal contempt proceedings against the defense attorney. Offutt does not control the issue here either.

In addition to Public Utilities Commission v. Pollak, supra, defendant has referred this Court to three other cases where judges have voluntarily disqualified themselves. They furnish no support for defendant's position on the legal issue to be determined here. The presiding judge in United States v. Gilboy, 166 F.Supp. 220 (M.D.Pa.1958), recused himself, not because of the legal sufficiency of the facts pleaded in the affidavit urging disqualification, but sua sponte in order to expedite affiant's trial for conspiracy. Similarly, in United States v. Quattrone, 149 F.Supp. 240 (D.D.C.1957), the trial judge emphatically stated that he was not required by law to recuse himself, but said that he did so only because, having discussed the case with an individual who was not counsel of record, he might appear to have been influenced by that individual. Finally, in United States v. Valenti, 120 F.Supp. 80 (D.N.J.1954), the presiding judge recused himself sua sponte out of an excess of caution, but only after he had carefully considered and rejected the legal sufficiency of the facts pleaded in the affidavit in support of disqualification. In each of these cases, however, the recusing judge understandably felt obliged to offer some explanation for his action. I feel an analogous obligation to explain, not just why I have chosen to remain in this case, but why, in my judgment, it is absolutely essential that I not withdraw from this case.

V.

BEING BLACK, AND THE APPEARANCE OF IMPARTIALITY

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

(1) I am black;

(2) Some of the defendant union's members are white;7

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

(4) "By agreeing to appear before such group [The Association for the Study of Afro-American Life and History] Judge Higginbotham presented himself as a leader in the future course of the black civil rights movement,"8 and

(5) By my appearance at the Association's meeting and/or by the substance of the remarks I actually made or as they were quoted in the newspaper, "the continuation of [Judge Higginbotham] as finder of fact, molder of remedy, and arbiter of all issues constitutes judicial impropriety."9

A. Being Black

I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just as most other ethnics take pride in theirs. However, that one is black does not mean, ipso facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic implies being anti-Protestant. As do most blacks, I believe that the corridors of history in this country have been lined with countless instances of racial injustice.10 This is evident by the plain historical fact that for more than two and a half centuries, millions of blacks were slaves under the rule and sanction of law — a fate which confronted no other major minority in this country.11 Every presidential commission12 and almost every Supreme Court opinion13 dealing with racial matters have noted the fact that in this country, there has often been racial injustice for blacks.

Thus a threshold question which might be inferred from defendants' petition is: Since blacks (like most other thoughtful Americans) are aware of the "sordid chapter in American history"14 of racial injustice, shouldn't black judges be disqualified per se from adjudicating cases involving claims of racial discrimination? Defendants do not go so far as to precisely assert that black judges should per se be disqualified from hearing cases which involve racial issues, but, as will be demonstrated hereinafter, the absolute consequence and thrust of their rationale would amount to, in practice, a double standard within the federal judiciary. By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing race relations even in the generalized fashion that other justices and judges have discussed issues of human rights. Under defendants' standards, if a black judge discusses race relations, he should thereafter be precluded from adjudicating matters, involving specific claims of racial discrimination.

To suggest that black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system.15 If defendants are not implying this extreme position about blackness per se as a basis for disqualification, then one must examine the rationale of their other allegations.

B. The Perniciousness of Appearing Before The Association for the Study of Afro-American Life and History?

The newspaper clipping and the pleadings state that I was speaking to "a group of black historians"16 at the 59th Annual Meeting of the Association for the Study of Afro-American Life and History.17 This organization was not a labor group, not an institute of management, not a political party, not the Black Panthers, not any entity which on or off the record has ever had a history antagonistic to those white Americans who believe in equal justice under the law. When compared with the meetings or conventions of labor unions, management associations, political parties or partisan activist groups, a meeting of historians is almost by definition as calm and dispassionate a gathering as one can find on the national convention scene. More often than not, historians suggest tentative hypotheses about social issues by analyzing the ebb and flow of the tides of history. Generally, they do not volunteer precise answers to those specific fact-finding aspects of the litigation process which are partially dependent on issues of the credibility of proffered evidence. In his classic Nora and Edward Ryerson Lecture at the University of Chicago, on April 23, 1974, famed scholar John Hope Franklin,18 speaking on "The Historian and Public Policy," suggested:

If historians meet as the "conscience of a nation" so that we will not ". . . suffer the fate of repeating the grave errors that [we] could easily have avoided," what is it that is so deplorable about appearing before a group of "black historians,20 whose purpose it is to analyze the strengths and the frailties of our society? Why is it so intrinsically wrong to speak to these historians on the subject "Racism and the American Legal Process: Where Have We Been and Where Are We Going?"

Would it have been permissible for a black to have talked to white historians, or is there something particularly opprobrious about speaking to any group of historians which thereafter taints one's ability to participate in the judicial process? Do petitioners suggest that it is more sinister for a black judge to speak to black historians than for the Chief Justice of the United States Supreme Court to speak to the National Conference of Christians and Jews?20a Should the distinguished Chief Justice be barred in the future from adjudicating cases where claims of religious or racial bigotry are urged, simply because he spoke to a distinguished group which supports the concepts of the brotherhood of man, the golden rule, and fair play?

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

C. Is it Permissible for Black Judges to be Scholars in the Race Relations Field?

Again and again in their petition and memorandum of law, defendants charge that by my appearance before the Association for the Study of Afro-American Life and History "the community at large was, as a consequence, made aware of Judge Higgin-botham's significant role as a spokesman, scholar and active supporter of the advancement of the causes of integration."21 Do defendants think it sinister that some individuals consider me a scholar in the race relations field? Is it that scholarship which is their ultimate grievance?22 We have noted previously that, while at Harvard, Mr. Justice Frankfurter wrote the classic critique of abuses by the federal courts of their equitable jurisdiction in labor disputes. F. Frankfurter and N. Greene, The Labor Injunction (1930). He also helped to draft the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101, et seq., which was designed to curb these abuses. Yet no one asserted that his prior scholarship precluded him from sitting as a Justice in United States v. Hutcheson, supra, one of the leading cases interpreting the scope of the Norris-LaGuardia Act. He not only did not disqualify himself, he wrote the Court's opinion. If Justice Frankfurter, after years of scholarship at Harvard, had not lost the capacity to construe impartially a statute which he drafted, why should a black judge be disqualified because he has studied the legal history of racism and taught the subject at some of the leading universities of this nation?

In this Circuit, former Chief Judge Biggs for decades displayed a keen interest and wrote decisively in the forensic psychiatry field. Probably more than any federal judge in the nation he was responsible for analyzing the deficiencies of the legal process when it dealt with issues of mental illness. In 1954, he received the Isaac Ray Award of the American Psychiatric Association, which is granted annually to the ". . . individual deemed fit and deserving of such honor in the field of the relationship between psychiatry and jurisprudence." In 1955, he published his classic book, The Guilty Mind. It was reviewed in The Legal Intelligencer of April 4, 1956 as follows:

Complex patent cases in this district were constantly assigned to the late Judge William H. Kirkpatrick. Should he have been disqualified because of his nationally recognized expertise in patent law? Are defendants suggesting that, except for black judges who become scholars on race and the American legal process, all other judges may be scholars in any field in which they may later be required to make an adjudication?

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

VI.

THE SUBSTANCE OF THE SPEECH AND RELEVANT PRECEDENT

If defendants' claim cannot rest on disqualification per se because I am black, if it cannot rest on the fact that a black judge spoke to a conference of black historians, if it cannot rest on the fact that some think I have a reputation for scholarship in matters dealing with race and the legal process, then the viability of the motions must depend on the content of the speech, either as actually given or as reported in the newspaper clipping which was attached as an exhibit to their motions.

Because defendants' motions contained some outlandish constructions of the content of the newspaper article and hypothesized other circumstances which purportedly attended my speech, I am attaching as appendices:23

(1) the speech as actually prepared for the conference, copies of which were made available to the press at their request.

(2) The official program of the 59th Annual Meeting of the Association for the Study of Afro-American Life and History, and

(3) the souvenir journal of the convention.

There is an extraordinary gap between the facts as reported in the newspaper article and the inferences, speculation and hunches which defendants assert in their motions for disqualification. Defendants apparently are relying on the newspaper clipping as their basis for disqualification, yet in their brief they make assertions which exemplify more fantasy than logic. As an example, they assert that "During his speech Judge Higginbotham spoke in emotional terms of solidarity, . . ."24; yet not once is the word "solidarity" used or implied25 in the newspaper clipping, nor was it used in the speech. What is the basis for their inference that I spoke of solidarity in emotional terms? The article notes:

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

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

Finally, defendants assert that "By agreeing to appear before such group, Judge Higginbotham presented himself as a leader in the future course of the black civil rights movement."26 The defendants overstate their case and probably unintentionally denigrate the black civil rights movement. They confuse the civil rights movement with the study of history.

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

From this article the only rational inferences which can be drawn, if one assumes that the reporter's comments were accurate, are that the historians were told:

(1) that they should not rely on the Supreme Court alone;

(2) that I am critical of the current Supreme Court for its decisions in two recent cases, and

(3) that this criticism had been expressed by justices of the United States Supreme Court, including Justice Thurgood Marshall.

Even if the reporter was accurate in his conclusionary summaries, the article does not imply in any respect that I would not follow any mandate of the Supreme Court, or any applicable federal law; for of course I will. Taking the article in the light most favorable to defendants, I merely repeated what Judge William Hastie has said about an earlier period of the court's history.27

VII.

THE PRECEDENTS OF HASTIE, STEWART, ALEXANDER AND BURGER

One of the most profound statements ever made on race and the American legal process was Judge William H. Hastie's authoritative article, "Toward an Equalitarian Legal Order, 1930-1950," in The Annals of the American Academy of Political and Social Science, May 1973. Judge Hastie began his article as follows:

Should Judge Hastie be hereafter disqualified because in this learned article he recognized "[t]hat sordid chapter in American history"29 where the courts, the national state and local governments failed to assure equal justice under the law? Or would this distinguished jurist and scholar, William H. Hastie, escape disqualification because he is on the Court of Appeals, or because his article was published in a national journal directed to political and social scientists and was not presented primarily to a group of black historians?

Just four weeks ago, Associate Justice Potter Stewart of the United States Supreme Court delivered a most perceptive address at the Yale Law School Sesquicentennial Convocation. He reminisced about his years at the school and noted that from just one "student eating club" in his years there had come ". . . the two members of the Supreme Court who are here today, a United States Senator, three members of the House of Representatives, two governors of Pennsylvania, two secretaries of the Army, an Undersecretary of Defense, a nominee for the Vice Presidency of the United States, a Vice President of the United States, and the incumbent President of the United States." Many of the alumni present at the Sesquicentennial Convocation were like those in Justice Stewart's student eating club — individuals who are now charting the future course of our society in top policy-making positions. Before this group, Justice Stewart applauded the Yale Law School's great tradition "of free inquiry, of independent thought, and of sceptical examination of the very foundations of existing law." He went on to note:

I agree with Justice Stewart's assessment of Yale and also of the First Amendment. But my concurrence on these points is irrelevant. The significant fact is that one of the Justices of the United States Supreme Court felt that it was appropriate to speak out on the First Amendment as part of a tradition of "free inquiry, of independent thought, and of sceptical examination of the very foundations of existing law." If it was appropriate for him to discuss such sensitive issues as have confronted the nation within the last ten years against a background of the importance of the First Amendment, then what makes it so inappropriate for a black judge to discuss, before black historians, the nation's racial history under the rule of law?

In view of those comments of Justice Stewart, are defendants suggesting that he should thereafter be disqualified from sitting on first amendment cases, or on other matters tangentially related to the area about which he spoke?

At the luncheon where I spoke, I was introduced by the late Judge Raymond Pace Alexander, senior judge of the Court of Common Pleas of Philadelphia County, and the first black to be appointed a judge in that court. Because during most of his professional life Judge Alexander has expressed comments similar to those which Judge Hastie made in the Annals article, and because of his long association with this scholarly group, the Association for the Study of Afro-American Life and History,31 and his introduction of me at the banquet, should Judge Alexander have been disqualified from ever hearing a case involving racial claims?

One month to the day after he had introduced me before the Association for the Study of Afro-American Life and History, on November 25, 1974, the city and nation suffered the loss of Judge Alexander. The eulogies were endless and, as The Philadelphia Inquirer noted in its lead editorial of November 26, 1974, "His Legacy is a Better City":

Judge Alexander's legacy32 was partially because of the commitment he kept even after he was a judge. Defendants would probably have been the first to applaud that legacy when it was noted on the obituary page. They might even have sent a card of condolence to the family. But they seem to be oblivious to the fact that this legacy was earned by Judge Alexander's participation in the great events of his lifetime, including his frequent speeches to the Association for the Study of Afro-American Life and History.

One of the many gratifying aspects of Chief Justice Burger's leadership of the federal judicial system has been his intense awareness of the inadequacy of the criminal justice system, particularly as it pertains to corrections, prisons, and jails.

In his penetrating address on the criminal justice system on November 16, 1972, to the National Conference of Christians and Jews, he captioned his speech "Our Options are Limited." He stated:

Because Chief Justice Burger has taken such a leadership role in bringing enlightenment to our failures in our correctional institutions, should he be disqualified from adjudicating cases where some wardens or parole boards feel that the correctional system has not been faulty, at least in a specific case where a prisoner is asking for relief?34

VIII.

THE RELEVANCE OF DISSENTING OPINIONS: ". . . an appeal to the brooding spirit of the law, to the intelligence of a future day."34A

Was it inappropriate for me to suggest that my audience pursue remedies for inequality in forums other than the Supreme Court? How are the interests of defendants disparaged or hurt when a group of historians or blacks are told they cannot rely on the Supreme Court alone in their pursuit of equality? Such an argument would, if anything, aid defendants rather than prejudice them for it recognizes the limited powers of the judiciary as an instrumentality to eradicate some aspects of racial injustice.

Moreover, this view of the limited extent to which blacks can rely on the Court is not original with me. Justice Thurgood Marshall, in the Bradley case, was joined in his dissent by Justices Douglas, Brennan and White.35 He said:

Defendants cannot seriously contend that it is improper to quote with approval the dissenting opinions of Supreme Court Justices. Time and again, in rejecting legal conclusions that appeared obvious to a majority of their contemporaries on the Court, dissenting Justices have shown themselves to be true prophets, predicting with uncanny accuracy the course the law would eventually take. Mr. Chief Justice Hughes phrased it well:

The history of the Supreme Court is studded with examples of the prescience of dissenting Justices.

In Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the Supreme Court struck down on due process grounds a statute prohibiting bakery workers from toiling for more than sixty hours a week. Mr. Justice Holmes, in a classic dissent, pointed out that "[t]he 14th Amendment does not enact Mr. Herbert Spencer's Social Statics," and that "[the] Constitution is not intended to embody a particular economic theory."38 Thirty-two years later Justice Holmes was vindicated when the Lochner doctrine was finally discarded in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). In Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101 (1918), the court struck down a Congressional statute prohibiting the shipment in interstate commerce of goods produced by child labor. Again, Mr. Justice Holmes dissented, and again his view eventually became the law, this time in United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), which expressly overruled Hammer v. Dagenhart, supra.

In First Amendment cases, Mr. Justice Brandeis joined Mr. Justice Holmes to form an immortal tandem of dissenters. Theirs was the minority view in Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919), and Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Not long afterwards, however, the values they had championed were endorsed by the Court in Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), in Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937), in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and in Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

Both men were in the minority again in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), where they voiced their objection to federal invasions of individual privacy through wiretapping. In his dissent, Mr. Justice Brandeis gave classical expression to the philosophical foundation of the Fourth Amendment:

This "appeal to the brooding spirit of the law" fond an answering echo in United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), where the Supreme Court unanimously rejected the Federal Government's claim that it could conduct warrantless electronic surveillance in matters of domestic security.

The dissenting opinion of Mr. Justice Black in Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947), presaged the expansive view of rights entitled to Fourteenth Amendment protection that was later reflected in landmark criminal procedure decisions like Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Finally, the first Mr. Justice Harlan stood alone in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), when he said that

Fifty-eight years later, in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Supreme Court unanimously adopted the message of Mr. Harlan's dissent that the states cannot impose racial segregation.41

Surely, then, there was no impropriety in my reliance, in a public forum, on Mr. Justice Marshall's appeal to "the intelligence of a future day," his dissent in Milliken v. Bradley, supra, unless defendants believe that a Supreme Court Justice may make such an appeal, but a District Court Judge may not. Or do defendants believe that all opinions of the majority during the October, 1973 Supreme Court term are eternal verities and that it is heresy to hereafter quote one of the dissenting Justices?

IX.

THE OLD AND NEW ORDER OF THINGS

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

Since 1844, when Macon B. Allen became the first black lawyer to be admitted to the bar of any state,42 and since John S. Rock was admitted to the bar of the United States Supreme Court on February 1, 1865,43 black lawyers have litigated in the federal courts almost exclusively before white judges, yet they have not urged that white judges should be disqualified on matters of race relations. In fact, in the "good old days" before William H. Hastie was appointed in 1949 to the United States Court of Appeals for the Third Circuit, white litigants throughout America were able to argue before a judiciary from the United States District Courts to the Courts of Appeals to the United States Supreme Court without encountering a single black judge along the entire judicial route; for until Judge Hastie's appointment there were no black Article III judges.44 In fact, until 1961, white litigants in the United States District Courts never had to ponder the subtle issue which defendants now raise, because no President had ever appointed a black as a United States District Judge. If blacks could accept the fact of their manifest absence from the federal judicial process for almost two centuries, the plain truth is that while litigants are now going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations.

Interestingly enough, in my almost eleven years on this court, Abraham Freedman and his law firm, Freedman, Borowsky and Lorry, representing claimants and members of the National Maritime Union and the International Longshoremen's Union, have appeared before me on hundreds of occasions. Often they were representing black seamen and black longshoremen. In the process, they have obtained verdicts and blacks which cumulatively involve mil-settlements before me in behalf of lions of dollars for the litigants and millions of dollars in fees for their law firm. The rationale on which they now proceed, if valid, would constitute a basis for disqualifying me and every other black judge in the nation who sits on any of the maritime cases which they litigate here and nationally, because these cases frequently turn on a contested issue of credibility between the allegations of negligence or unseaworthiness by the black seaman or longshoreman and the contrary allegations of the stevedore or maritime officer (who most often are white). Why should black judges be qualified to sit when defendants' present counsel are collecting millions of dollars in legal fees from black seamen and longshoremen, but become instantly disqualified to sit when a predominantly white union represented by the same law firm is charged with racial discrimination?

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

Though a complex man who made many notable contributions to the advancement of black people, Booker T. Washington45 symbolized the "we won't rock the boat" attitude in his famous Atlanta speech, where he said:

When Washington said "[i]n all things that are purely social, we can be as separate as the fingers," he defined as "social" some areas which are now classically considered civil rights. Because of the priorities he deemed essential, Washington seemed to imply that blacks would not vigorously oppose state-imposed segregation, or their exclusion from some public accommodations, and that they would not protest against state-imposed racial segregation in public schools. Some thought that Washington may even have meant that blacks would not strongly protest their disenfranchisement in the political arena.46a The classic analysis of Booker T. Washington has been given by Louis R. Harlan, who noted:

There is, however, a new generation of blacks in the 1970's who do not accept Booker T. Washington's analysis that "[i]t is at the bottom of life we must begin . . ." as the model for the conduct of blacks in this decade. For they know that despite his deference, despite his care not to offend the then hostile white political structure, he could not mollify those who insisted that blacks accept second-class citizenship. On the contrary, such acquiesence was interpreted to mean that blacks were content with being three-fifths of a man.47a Further, blacks are aware of the sequel to Booker T. Washington's deference. For when he informally had lunch with President Theodore Roosevelt, Loren Miller has noted that:

X.

THE ROLE OF JUDGES

Thus, the critical issue is, what conduct by black judges will assure their impartiality? Should they be robots? Should they demean their heritage by asking for less than first class citizenship for other blacks? Should they not tell the truth about past injustices? Of course, there is a dramatic difference between the role which legislators, politicians, and elected officials play in our society, one which is far closer to the cutting edge of policy development, and the role which could be tolerated or expected from a federal judge. I willingly accept those limitations; they are inherent in the judicial process. I am aware that Judge Higginbotham is not Senator Higginbotham, or Mayor Higginbotham, or Governor Higginbotham, but I also know that Judge Higginbotham should not have to disparage blacks in order to placate whites who otherwise would be fearful of his impartiality.

Obviously, black judges should not decide legal issues on the basis of race. During my ten years on this court, I have not done so. I have, depending on the facts, sentenced numerous black and white criminal defendants to substantial terms of imprisonment. I have placed other criminal defendants, both black and white, on probation. Depending on the relevant facts, some civil cases have been decided in favor of and others against black litigants. In this case, plaintiffs similarly will enjoy no advantage because they are black; defendants will not be disadvantaged because some of them are white. The outcome of this case will be dictated by what the evidence shows, not by the race of the litigants.

I am pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jew-Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community. I respect them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges.

Many Catholic judges have been active in their church, as have been Episcopalian and other Protestant judges. It would be a tragic day for the nation and the judiciary if a myopic vision of the judge's role should prevail, a vision that required judges to refrain from participating in their churches, in their nonpolitical community affairs, in their universities. So long as Jewish judges preside over matters where Jewish and Gentile litigants disagree; so long as Protestant judges preside over matters where Protestants and Catholic litigants disagree; so long as white judges preside over matters where white and black litigants disagree, I will preside over matters where black and white litigants disagree. Defendants are patently aware of the variety of extra-judicial activities which has been the accepted standard for judges in this District Court, in this circuit, and in the nation. It is inconceivable, then, that rational lawyers would object to the aforementioned speeches made by Chief Justice Burger and Justice Stewart, or even the speech which Justice Douglas made on December 2, 1974, to the Jewish Community Relations Council of Philadelphia.

I concluded my address to the historians by quoting Langston Hughes' famous poem "Dream of Freedom":

In a nation which had a revolution theoretically based on the declaration that "we hold these truths to be self-evident, that all men are created equal," a judge should not be disqualified if two centuries later he believes that the rhetoric must be made real for all citizens, including blacks, and that the dream must be "saved for all."

CONCLUSION

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

My remarks to the Association for the Study of Afro-American Life and History on October 25, 1974 are the factual foundation for defendants' motions. Those remarks reflected a position similar to the one which that distinguished federal jurist from South Carolina, Judge Waring,49 once took in behalf of equal racial justice. My remarks, like his, showed "at most, zeal for upholding the rights of Negroes under the Constitution and indignation that attempt should be made to deny them their rights. A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence." Baskin v. Brown, supra, 174 F.2d at 394.

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

Defendants' Motions for Disqualification are denied.50