e-Book Unrepentant Leftist: A Lawyer's Memoir download

Fifteen years ago, I found myself in one of many long talks with Frank Donner. Nation readers will remember Donner's great books on U.S. political repression, The Age of Surveillance and Protectors of Privilege. On this occasion, however, our conversation turned to Frank's work as an attorney thirty years before, when he had defended dozens of people in McCarthy-era subversion cases. Donner had the animated face of a Jewish Benjamin Franklin. His voice always sounded a half-tone sharp of the prevailing conversational pitch, and he was imbued with a combative, cheerfully anti-authoritarian spirit. But as the nitty-gritty of his work in the fifties emerged from the recesses of memory, Frank's voice lowered to a hoarse mutter, the flesh of his face grew heavy and he lapsed into gloomy rumination: about clients overcome by paranoia; about the burden of learning that a Communist Party committee in Ohio had beaten a member falsely accused of informing; about the F.B.I.'s harassment of Frank's own family and neighbors. These were hardly conventional courtroom war stories.

Most of the attorneys who shouldered the unprecedented professional burden imposed by the anti-Communist purge are now dead, Donner among them. Few now remember that they were a diverse lot--labor lawyers and Communist Party members, white-shoe corporate practitioners, distinguished academics--or that for most of them the loyalty cases turned out to be a messy, life-defining business. Even institutional memory is at risk of being lost: Early this year, the National Emergency Civil Liberties Committee, established to aid these lawyers when the A.C.L.U. succumbed to the era's hysteria, passed out of independent existence, merging with the larger Center for Constitutional Rights in New York City.

Two books published over the past two years--a family biography centered on liberal California celebrity lawyer Bartley Crum by his daughter Patricia Bosworth, and the memoir of left-wing paladin Victor Rabinowitz--begin the important excavation of these lawyers' stories. Reviewers have focused on each book's larger story: Bosworth's is a sometimes excruciating chronicle of an imploding upper-class family, Rabinowitz's is a saga of a half-century of activist lawyering. But loyalty cases are the linchpins upon which both men's lives and careers turned.

Many people remember Joseph Welch's "have you no decency" denunciation of Joe McCarthy. But Rabinowitz tells a story that's probably more representative of loyalty-case lawyering. The occasion was one of McCarthy's hearings at the Army Signal Corps in Fort Monmouth, New Jersey, around 1953. A distraught woman approached Rabinowitz outside the hearing room. A single mother and, it seems, a party member, Sylvia worked as a clerk for the local board of education but had been formerly employed at the Signal Corps. If compelled to testify, she would lose her public school desk job. Rabinowitz took Sylvia's case on the spot.

I waited in the hall to catch McCarthy as

he came up in the elevator, and a few

minutes before ten o'clock he stepped out

of an elevator car, saw me ... threw his

arms around me shouting, "Hello Vic!

What can I do for you?" There were

about fifty people in the hall, and I did

not relish the greeting.

Keeping a lid on his repulsion, Rabinowitz asked McCarthy to excuse Sylvia from testifying. "I pointed out that it seemed unnecessarily cruel to this young woman to deprive her of employment." Sure, said McCarthy--just check with his chief counsel, Roy Cohn. Cohn, true to form, said no. The genial McCarthy proceeded to shred Sylvia in the hearing; she lost her job the next day.

By disposition and training, lawyers are essentially believers in the system. The attorneys at the top of their game in the fifties, even Marxists like Rabinowitz, had earlier found special ratification for that inclination in the New Deal. So cases like Sylvia's represented a rude awakening. And the unique pressures of ended loyalty cases--the fractious fights between C.P.ers and liberals, the constant F.B.I. surveillance, the likelihood that attorneys themselves would be subpoenaed by the same investigating committees as their clients--could leave even high-powered lawyers feeling unmoored. Some, like Rabinowitz, were so outraged by the sustained cynicism of the inquisitors that they became outriders of sixties radicalism. On the other hand, at least a few were left crushed in livelihood and spirit--among them Bartley Crum, one of the most prominent members of the Hollywood Ten's "dream team" in 1947, who would spend the next decade yanked back and forth between the poles of principled resistance and humiliating capitulation.

Both Rabinowitz and Crum arrived at their encounters with the inquisition through the National Lawyers Guild, founded in 193 7 as a progressive, pro-labor alternative to the American Bar Association. Except for the guild, though, their careers could not have been more different. Rabinowitz is, at 87, one of the few survivors of that era still practicing law. Moved by a short story by Albert Maltz (later one of the Hollywood Ten), Rabinowitz had steered himself into labor law, joining the Communist Party in 1942. In a few years, he and Leonard Boudin founded what remains the nation's leading progressive law firm, today known as Rabinowitz, Boudin, Standard, Krinsky & Lieberman.

Unrepentant Leftist is an unapologetic recollection of movements and clients. Rabinowitz is blunt in his motivation for joining the party (he was "more interested in works than faith"), equally unambiguous about his differences with party policy in the postwar years and his reasons for leaving in 1960. He recounts his firm's long representation of Cuba, the ups and downs of the guild, his efforts on behalf of the civil rights movement in the South (among his clients, his daughter Joni, tried in Georgia on a trumped-up perjury charge). With great dignity he describes the arduous job of aiding in the representation of his partner Boudin's daughter Kathy, who, after eleven years as a Weather Underground fugitive, was arrested in 1981 for murder in a Brink's robbery in Nyack, New York. Through all of this Rabinowitz comes across as a stand-up guy, as Abbie Hoffman defined it: the Tony Curtis character who, when the Roman centurion comes for Kirk Douglas, rises to declare, "I am Spartacus."

Rabinowitz was witness to the first chapter of the purge. In 1947, Congress passed the Taft-Hartley Labor Act to regulate union organizing. Taft-Hartley's section 9(h) required officers of unions certified by the National Labor Relations Board to make sworn declarations that they were not members of the Communist Party. A Rabinowitz client, the American Communications Association, was closely aligned with the C.P. and, when its officers could not sign the requisite oath, was duly decertified. Various federal judges upheld the decertification. Rabinowitz tried to convince the union and party leadership to swallow their loss: He feared an adverse Supreme Court ruling would set a broader and more dangerous precedent. The party hierarchy insisted on an appeal, but Rabinowitz turned out to be right. In American Communications Association v. Douds, the Court ruled that protecting "the free flow of commerce" from crippling strikes favored by C.P. strategists trumped First Amendment rights. It was the first national test of a blanket ban on Communists in trade unions, and it unleashed a flood of anti-subversive legislation aimed at other sectors.

At first, the anti-Communist panic was actually good for the firm's business. But soon the professional cost was clear. Many individual clients could not afford to pay, and heavily Communist unions like the United Electrical Workers were going broke defending themselves. The firm's largest and most reliable client, the Health Care and Hospital Workers Union-District 65, abruptly decided it needed lawyers without Rabinowitz-Boudin's red taint. Rabinowitz himself was called to testify before Senator James Eastland's Internal Security Subcommittee, and had to block Eastland's investigators physically from seizing his client files.

With exceptional candor, Rabinowitz illuminates, in new and often unflattering ways, the role played by the Communist Party hierarchy--the flight underground of C.P. leaders indicted under the Smith Act, for instance, which he correctly viewed as the sheerest folly. Equally enlightening are his accounts of debates with other party lawyers on how to handle investigators' subpoenas--arguments between "First Amendment Communists" wanting to defy the committees' right to ask any questions at all, and Fifth Amendment Communists wanting to protect themselves with the established right to non-incrimination. In the short run the so-called First Amendment Communists lost out, especially after citations of the Hollywood Ten for contempt; most witnesses claimed the Fifth. But in the long run, repeated invocations of the Fifth Amendment under the glare of klieg lights helped convince the public that dissenters really were conspiratorial criminals. It would take more than a decade before Rabinowitz, Donner and other lawyers could chip away substantially at the inquisition's reach, one contempt citation, one passport denial at a time.

Communist Party strategists come in for a lot of knocks in Bart Crum's biography, too, though from a different perspective. Where Rabinowitz complains that the party sometimes insisted on hiring establishment lawyers like Crum at the expense of political practitioners' greater expertise, Crum, working on the Hollywood Ten case for producer Adrian Scott and director Edward Dmytryk, was in precisely the opposite position: locked out of key meetings and decisions.

Crum desperately wanted to be a standup guy, but through a combination of personal failings and the ravages of blackmail, he ended up with a chronic case of liberal staggers. Prior to 1947 he'd combined a lucrative career as retainer to the likes of William Randolph Hearst with forays into reform politics. Self-aggrandizing, fiscally profligate and publicity-addicted, he attached himself temporarily to lost causes: the doomed 1940 presidential campaign of reform Republican Wendell Willkie; the pioneering but equally doomed newspaper PM, which he tried, disastrously, to salvage from bankruptcy. Another lost cause was his family. Patricia Bosworth's book filters her father's public career through an intimate life of considerable privilege but greater pain. I'll skip over Bosworth's recounting of the details, except to say that her father's appealing public persona, his idealism and restless energy, are as apparent as his horrifying self-indulgence.

By 1947, Crum's attachment to Popular Front causes--ranging from Jewish resettlement in Palestine to the Progressive Citizens Association--had attracted the scrutiny of J. Edgar Hoover. Then came the Hollywood Ten. From the beginning, Crum found himself at odds with orthodox party lawyers on the team. "My father felt uncomfortable with the Party's secrecy," Bosworth writes. "He would joke and flatter to make a point, tactics the Communists didn't appreciate at all... In the midst of one discussion my father suggested everybody simply tell the truth." His clients Scott and Dmytryk agreed, but were outvoted when party lawyer Ben Margolis and screenwriter Dalton Trumbo argued that to answer questions at all would acknowledge HUAC's right to ask. Worse, Crum learned that party lawyers had held a separate, secret caucus about tactics. Despite Crum's professional prominence, he was ill equipped for the blacklist's political complexity. "You have no cunning in your face, Bartley Crum," Bertolt Brecht said to him one day, shortly before the martyrdom-averse Brecht told a boldfaced lie to HUAC about his political affiliations and then packed his bags for East Germany.

Still, Crum took on other loyalty cases--California teachers and unionists mostly, meeting them late at night in bars to avoid attracting attention. Rather than directly challenge the inquisition, his strategy was to "protect the client from making rash statements ... to sound 'hostile' to Communism." It's not clear whether this "establishment" strategy paid off for his clients. It certainly did not protect Crum from the F.B.I.: "Most certainly a Communist or a hidden Communist," his file says. "Always refers to himself as a Catholic or Republican; obviously a double alibi." Nor did it shield his family from being ostracized in their affluent, conservative social set.

Crum couldn't quite make up his mind where his commitments lay. Sometime in 1948, he stopped handling loyalty cases because "his more conservative clients disapproved." Yet that same year he moved to New York as new publisher of the failing PM, which he renamed the New York Star. Endlessly red-baited and hopelessly undercapitalized, the paper was out of business in a year, and a few weeks later Crum attempted suicide. By the end of 1950, Crum had resigned from the National Lawyers Guild to look "less subversive." At the same time his client Dmytryk broke with the Hollywood Ten to testify about his own activities. Most of the Ten blamed Bart.

These conflicting pressures reached critical mass in the spring of 1953: In a restaurant with his family, he was suddenly called to the phone. Hoover was on the line, warning Crum his passport would be revoked unless he went to Washington to answer some questions. Crum provided a dirt-eating written statement: "I am a practicing Catholic. My religious and political views are not and have never been compatible with Communism or Socialism." That's what he told his family, gradually adopting a defensive bitterness toward the C.P. What Crum didn't say is that he also agreed to provide the F.B.I. with information about the Lawyers Guild and two of his colleagues.

In the short run, Crum's strategy worked: His passport was renewed. But the process seemed to collapse his internal system of meaning; he had no Rabinowitz-like compass to restore stability to his life. He'd already come to rely on alcohol and barbiturates. His son Bart Jr. committed suicide. Over the next few years "his career fell into a shambles," notes Bosworth. Crum only re-emerged in the public eye in a bizarre episode in 1958, representing one of the founders of the notorious promoter of the entertainment blacklist, Aware, Inc., in a complicated lawsuit against Jimmy Hoffa and the Teamsters. This brought him into contact with the young Robert F. Kennedy's Senate rackets investigation. Hoping that Kennedy might somehow straighten him out with the F.B.I., Crum began to leak information he'd been told privately by Teamsters lawyers; he finally agreed to testify publicly. In a Capitol Hill hearing room he even charged that Washington power broker Edward Bennett Williams, on the Hoffa team, offered to buy his silence. The charge was probably true, but Crum was so addled by drugs and alcohol that he got key facts wrong and was forced to retract his own statement. And there, essentially, Crum's life ends: Within a year he committed suicide after a dinner party.

The interesting thing about these two very different stories is that Crum brought to the inquisition so many seeming advantages over Rabinowitz: money, political connections, press contacts. Yet it was Crum who ended up shattered. It's easy enough to pin their different trajectories on character and temperament. But there's more to it than that. There were liberals with lives more orderly than Crum's who managed to be just as politically unsteady, including the era's A.C.L.U. director, Morris Ernst, who secretly passed information to Hoover. Maybe the difference is that a party attorney like Rabinowitz had little to lose, while a wealthy establishment lawyer could lose everything. Moreover, Crum and Ernst both believed their professional effectiveness depended on remaining respectable, on preserving access to the powerful--a thoroughly ineffectual self-deception and a lesson for today's access-preserving Washington liberals. (The self-deceptions were not all on one side. The standup silence of Rabinowitz and other party loyalists, while admirable in so many ways, was also part of a disastrous culture of secrecy that made anti-Communist attacks as easy as shooting fish in a barrel.)

Between them, these two biographies evoke the minute particulars of a defining moment in the history of U.S. civil liberties. It's easy to forget that most of the earliest important First Amendment precedents, in the shadow of World War 1, were more recent to McCarthy-era lawyers than the Hollywood Ten are to us today; the expansive First Amendment rulings of the Warren Court were still years away. And then there was the unprecedented challenge to lawyering itself. Going back to Samuel Adams and the Boston Massacre, the American legal system has generally maintained a clear distinction between advocate and client, but the loyalty cases punished lawyers and clients alike. While not every lawyer met the loyalty-case test with equal honor, virtually all did so at personal cost.

The loyalty cases, which once loomed large enough to make national political careers for Richard Nixon and Ronald Reagan, now surface in the national consciousness only occasionally, like a bad dream fleetingly recollected over lunch. But theories of the First Amendment that today seem common sense were first articulated by loyalty-ease lawyers; for instance, Yale Law School Professor Thomas Emerson, who with I.F. Stone founded the National Emergency Civil Liberties Committee, conceived his magisterial The System of Freedom of Expression as an affirmative response to the witch hunts. If jurors today know enough about the First Amendment to acquit Oprah Winfrey of libeling the Texas beef industry, if opinion polls show a public suspicious of a messianic inquisitor like Kenneth Starr, it's largely because a contemporary language for free speech was created by the exhausted and embattled civil liberties bar of the fifties.

Any student of human rights and the US history of legal battles in this field would enjoy this memoir. Mr. Rabinowitz along with his late partner Leonard Boudin blazed new trails in the legal annals in labor, international, and civil rights law. This is a brief account of the life of Mr. Rabinowitz, his cases, his views and friends and enemies
he met along the way.

A wonderful read.