A. Leon Higginbotham, Jr. 1928–

At a Glance…

Weathered Racism

Youngest Federal Judge in 30 Years

Defender of Affirmative Action

Sources

Retired federal judge

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 black student had ever attended. He left his first university because it would not heat the dormitory where black 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.” 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, 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 t sole passport to a better life, “he told the New York Times. She r 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 black elementary schools, however.

Although the school had never admitted a black 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 realizes 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.”

At a Glance…

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

Assistant district attorney Philadelphia County 1953-54; 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 Appeals Third Circuit, 1977-93; counsel to Paul, Weiss, Rifkind, Wharton, 1993—; Harvard University professor, 1993—

Selected awards: Presidential Medal of Freedom, 1995; more than 40 honorary degrees.

Addresses: Office— Paul, Weiss, Rifkind, and Wharton, 1285 Avenue of the Americas, New York, NY 10019-6064.

Weathered Racism

Graduating from high school at 16, Higginbotham entered Purdue University, intending to become an engineer. He was one of only 12 black 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 still rankles more than 50 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 then and there 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, and 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 a black man. When he 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 black 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 he 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 black 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, he 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 he was appointed U.S. district judge for the Eastern District of Pennsylvania by President Lyndon Johnson. Higginbotham was 35, the youngest federal judge in 30 years, and at that time the only black judge in a district court. Four years later he 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. He became chief judge of the court in 1989, and chief judge emeritus, with a reduced caseload, in 1991.

During his legal career Higginbotham was a prolific author, writing more than 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 over 40 honorary degrees.

In 1982 Higginbotham and other black jurists were invited to visit South Africa and give a series of lectures. But the country’s brutal apartheid system was 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 has favored aggressive government enforcement of civil rights and affirmative action, issues he has 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 black Americans during most of the nation’s existence. “Under the original Constitution,” he was quoted 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.

Blacks’ painful climb from servitude to freedom has been made possible by those who refused to accept injustice, he asserted in a 1995 New York University speaking engagement, which 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.”

Thus it was, perhaps, inevitable that when the conservative Clarence Thomas was appointed to the Supreme Court in 1991, Judge 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 takes 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’ 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, he wrote, “probably neither you nor I would be federal judges today.”

Higginbotham, who has cast Thomas as an ignorant and ungrateful beneficiary of the government programs he has opposed, said that in all of Thomas’ work “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 benefited you.”

The article soon received a dose of media attention not usually given to the dry and dusty text of 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, now a Supreme Court Justice, had become Higginbotham’s superior. Thomas Sowell, an economist with the conservative Hoover Institution and someone Thomas has publicly admired, deplored the judge’s inability to find the moral and ethical standards behind Thomas’ opinions. “On every page,” he was quoted in 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.”

But the missive and its sentiments were gospel to many others, particularly Anita Hill, whom some see as a victim of both Thomas and the hearings process. The letter was reprinted later in 1992, when it became the first chapter in the book Race-ing Justice, En-gendering Power,a series of essays written in reaction to the Hill-Thomas issue. Higginbotham continued to befriend Anita Hill, negotiating a million-dollar publishing deal for her with Doubleday in 1993 and coauthoring 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 sixty-fifth 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 he 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.”

In 1995 Higginbotham’s years of judicial service were recognized when President Clinton awarded him the Presidential Medal of Freedom, the nation’s highest civilian honor. And although many in his position would have rested on their laurels, Higginbotham has no plans to do so. “Some people look at 65 as a time when they

can get their main pension, sleep late, and have a few cocktails,” he told the Philadelphia Inquirer. “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.’”

Upon leaving the Third Circuit Court in 1993, he became counsel to the international law firm of Paul Weiss Rifkind & Wharton, where he intends to pursue his interests in South Africa’s newly democratic government. He also became a full professor at Harvard, remained an adjunct professor at the University of Pennsylvania, and was named to a seat on the board of the New York Times Company. In addition, he plans to publish the final two volumes of his trilogy, In the Matter of Color,as well as an autobiography.

Sources

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

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

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

—Amy Loerch Strumolo