Interview with Burt Neuborne
Burt Neuborne is a lawyer. He is the Norman Dorsen Professor of Civil Liberties Emeritus at New York University School of Law and the founding legal director of the Brennan Center for Justice. He was national legal director of the ACLU during the Presidency of Ronald Reagan.
The Yankees, the Mets, and the Criminal Justice System
Contents
Max Raskin: You have the most amazing stories from early in your career. The stories about the injunction against the bombing of Cambodia or seeing Bill Douglas at his cabin in Yakima.
Burt Neuborne: These are all true.
Well actually, it was in Goose Prairie, which is in the hills just above Yakima. That's where he had his camp.
MR: Are these stories lost on the students today or has it always been the case that there’s only ever one or two students in any class who think this is the coolest?
BN: As we get further and further away from that era, students seem to be less interested in what happened. I'm more conscious of wanting to make sure I cover a certain amount of material. I don't necessarily tell some stories.
Although yesterday in Procedure — I don't know if I ever told you this story — when I was a senior at Jamaica High School in the 1950’s, seniors would go to school from 8:00 in the morning to 12:30, and then you were off for the rest of the day. When class got out at 12:30, I used to walk over to the Queens Criminal Court, which was about a mile away, and sit in the back and watch them try criminal cases. This was the felony court for Queens. I watched them pick juries.
The first question that they would ask when picking a jury was: What evening newspaper do you read? In those years, New York City had about a dozen evening papers. It was the golden era of newspapers. They ran predictably left to right. The Daily Worker had an edition. There was a very strong conservative paper run by Hearst that was the Journal-American, and then in middle was the Herald Tribune and the Times. Depending upon which paper you read, you could get a really quick snapshot of their politics.
MR: So I have to ask the obvious question: What paper did you read?
BN: I read the Times and the New York Post. The New York Post in those years was a left-leaning paper, liberal paper. Dorothy Schiff had just bought it. But I read the New York Post for the sports section — the best sports section in the world.
MR: Did they ask anything else?
BN: The second question was the clinching question — and this is true — What baseball team do you root for?
In those years, there were three teams in New York. If you said, "I'm a Yankee fan," it was an immediate defense peremptory challenge. The Yankee fans all live in Westchester. They all had a lot of money, and they all voted for winners.
If you said, "I'm a Dodger fan," there was an immediate peremptory from the prosecution because of Jackie Robinson, the color barrier, and civil rights. So, in those years, every juror in New York was a Giant fan as the only people who'd be trusted to do justice.
MR: That's really funny…In the criminal justice system, the people are represented by three separate yet equally important groups…
So you were a Dodger fan I’m assuming?
BN: I was a Giant fan.
MR: You were a Giant fan?
BN: I was a Giant fan.
MR: So that's interesting.
BN: My father was a Giant fan. I was a Giant fan. I would go to Ebbets Field in those years with a friend who was a Dodger fan. My father was a rabid baseball player. He was a player and a fan and a decorated war hero.
The First American on Omaha Beach
MR: What war was your father in?
BN: He was a navy frogman in the Second World War.
MR: Wow.
BN: He was maybe the first American on Omaha Beach. He trained for almost a year off the coast of Scotland with an international unit of underwater demolition experts who went in six hours before the invasion and found the spikes that the Germans had put into the beach to tear the bottoms out of the LSTs as they came in. So, they sent this team in of about 50 guys. They sent this team in six hours early. They dropped them in the water into the channel.
MR: From a plane?
BN: No, from a small boat. They just jumped off the small boat and swam underwater. They had air tanks and swam up to the coast, found the spikes, put depth charges around them, and then rolled up into the surf.
They then sent a radio signal back that the charges were set, and then as the LSTs began to come in, they blew the charges.
MR: You don’t see this in Saving Private Ryan. I don’t think I read about it in any of the Stephen Ambrose books.
BN: When I wanted to take him to see Saving Private Ryan, he said he couldn’t. He said, "I was there. I saw the first three waves come in and get absolutely cut to pieces in front of my eyes. I saw them. I saw these poor kids get chewed up until the fourth wave managed to get some hold on the beach and they could clear the German machine guns."
MR: Do you think he had trauma after the war or was he well-adjusted?
BN: No he didn’t. He was amazing. He came home and literally took his uniform off.
But there’s more. The remnants of that operation were assigned to Patton as Patton's Navy. They were assigned to the Third Army. They handled the amphibious crossings of the French rivers. As Patton’s tank battalions swept across France, they had to stop at each river. Usually, the Germans had blown the bridge, and they had to do a quick amphibious crossing, and they had to clear out the mines. He did that all the way to the Seine. He crossed the Seine and was there at the liberation of Paris. It was quite amazing.
A Liberal Conservative
MR: I tell this joke about you all the time — that knowing your politics, you would think that if you went to your house, that there would be a drum circle with drugs and free sex and everything. But you're probably one of the more conservative people I know.
BN: My lifestyle is as middle-class as you can be and so was my father's. He was 5'6 in his stocking feet — he was a little guy. He was a tailor. He was a Jewish tailor. He had a tailor shop in Greenpoint. I remember sitting with him with pins in his mouth as he was sewing up the pants and things like that. I come from a long line of tailors in the shtetl. We were all tailors in Galicia. I come from a long line of tailors, and the big joke in the family is that if we hadn't emigrated and gone to the United States, I would've been a tailor in the worst dressed village in Europe. I was so awful.
MR: You never thought of going into the business?
BN: I just couldn't; I had no manual dexterity.
Anyway, my dad goes into the war. He was drafted. He had two kids. When the draft came for him in 1943, he went in, had this extraordinary career as a really brave, underwater demolition man, came home, took off his uniform, put on his pants, opened his tailor shop, and was a quiet, sweet, lovely man for the rest of his life, beloved by everybody. He was just a remarkable person.
MR: Were you involved with the Skokie case?
BN: Indirectly.
MR: Did your dad have anything to say about that?
BN: He thought we did the right thing [in defending the right of the Nazi party of America to march].
MR: He did?
BN: Oh yeah. He was a fairly left-wing man.
He was a very complicated man. I had a long history with him over Israel. He opposed the creation of Israel. He was a decorated war hero so he was one of the people who would accompany politicians and people into the camps and he walked through the camps. After a couple of days, he said, "I can't do it." He begged to be returned to combat. He said, "I can't be here." For the rest of his life, he would never, ever set foot on European soil again. He said it was a failed civilization and they should pave it and start over because of what he saw in the camps.
He was deeply, deeply committed and a proud Jew, almost a secular Jew, but a very proud Jew. I was bar mitzvah-ed.
So I would have this long conversation with him.
“Pop, how can you be against the creation of the state of Israel?”
"Look, I love Judaism. I love the ethics. I study the books. But it is the ethos of an outsider people. It is the ethos of people that need to say that the outsider has to be protected because they themselves are outsiders and so there is a harmony between our status in the world and being a principal spokesman for protecting the weak."
"I'm convinced that if we take responsibility for the administration of a nation state, it will be a very successful nation state. There's no doubt about that, but we will go from outsiders to insiders overnight.
I said, "Look, pop, if the only social purpose that the Jewish people serve is to be constant victims, let me try another operation here. Let's see if we can be strong and be ethical at the same time."
We laughed. So, we agreed to disagree. But to the end of his life, he thought the creation of the State of Israel was a mistake.
MR: Did he ever visit Israel?
BN: No. I don't think he ever visited Israel, but he was supportive of it. He was supportive of everything Jewish. He just thought it was a mistake.
Cpl. Neuborne Stops the War
MR: I want to ask you about your military service. Were you drafted?
BN: I was a conscientious acceptor.
When I was the military age, you still had the draft. A lot of my friends had kids to avoid the draft. I wasn't going to do that. I wasn't going to twist my life inside out just to avoid military service, but I really was not anxious to go. So, I volunteered for the Army Reserve. That's why I said I was a conscientious acceptor. I volunteered for the Army Reserve. In those years, you would do six months active duty and then five and a half years of reserve duty and then you would fulfill your military obligation.
I graduated from Cornell in January, went into the Army in late February, did my six months military duty, and then started Harvard Law School in September. So, it didn't cost me any time. It then continued to do one evening a week, one weekend a month, and two weeks a year for the next five and a half years. So I served from 1961 to 1967.
I enjoyed it, by the way.
MR: I remember you told me some of these stories in Washington Square. Weren't you down South? Where'd you do your basic?
BN: Fort Dix.
MR: Why did I think there was some story about you down South?
BN: Well, I did some stuff down south after I was a lawyer.
MR: Did you know Chaney, Schwerner, and/or Goodman?
BN: I knew Mickey [Schwerner].
MR: Really?
BN: Yes. We were Cornell classmates. The only difference was he went to social work school, and I went to law school. I mean, we had the same political views. He went to social work school, graduated from social work school, and went down directly into the South.
MR: Your story about Justice Marshall and getting an injunction to stop the bombing of Cambodia is legendary.
BN: [Tells the most amazing story. Full version here.]
Public Enemy Neuborne
MR: If you had a First Amendment claim, of all the lawyers in history that you’ve worked with, who would you want to be represented by?
BN: This is a name from the past — I would want to be represented by Osmond Fraenkel. He was a founder of the ACLU. I knew him when I was a young lawyer in the 60’s. Osmond argued most of the major First Amendment cases that were decided in the '40s. He represented the Jehovah's Witnesses.
Second would be Bruce Ennis, who was the national legal director of the ACLU that I succeeded and who was a brilliant guy.
If they weren't available, I wouldn't complain if I could get Floyd Abrams.
MR: Have you ever had a First Amendment claim in your life?
BN: Personally?
MR: Yes.
BN: No.
MR: Have you ever thought about being a plaintiff?
BN: No. No one's ever tried to shut me up.
MR: That's pretty good.
BN: I've lived a charmed life. I really have lived a charmed life.
The closest I came to experiencing what I believed to be improper government behavior was that I was on the Nixon enemies audit list.
When I was a young lawyer at the ACLU and had no money, I was audited repeatedly by an apologetic guy at the IRS. He really felt bad because I was only earning $12,000 a year in income or something like that.
MR: If you could have clerked for any judge throughout history, who would it have been?
BN: The first Justice Harlan would've been my first one. Then John Marshall and then the second Justice Harlan.
MR: Why do guys like you love the Harlans?
BN: Because they were brilliant intellects. They were principled. They cared about the system. They were honest.
MR: David Lat named his kid after the Harlans.
Just about adulation of judges. I have only one portrait hanging in my house, and it's a portrait of you. Do you know that portrait?
BN: That's a shame. You should get a life.
MR: A good friend gave it as a gift because his cousin had done a bunch of studies of you.
Did anyone ever consider you a folk hero? Did you ever get people baking you brownies or something like this?
BN: Not really. I mean, in part because, believe it or not, I'm relatively shy. I don't bask in public stuff. For many years, I rarely spoke publicly outside of a court.
MR: I couldn’t really find anything before the ‘90s.
BN: When I was an active litigator, I believed as a matter of principle that my job was to talk to the judge, not to the population and that I shouldn't try to sway the judge by any mass pressure. I thought that we were doing something different than politics. I tried to respect that.
MR: If you were giving advice to a young lawyer, how would you advise them on getting their cases and clients?
BN: Well, for me, it was easy because people came to the ACLU for help.
Reparations
MR: What about afterwards like the Holocaust reparations cases?
BN: This is a deeply personal story, but I'll tell it.
I lost a daughter.
I had two daughters, one survives — Ellen. She is a blessed presence in my life. Her younger sister, Lauren, died of heart failure in her final year of rabbinical school. The loss was beyond words. It took place in the mid ‘90s and I was derailed by it. I kept teaching, but I was just hiding in my work life.
I spent six months walking around Greenwich Village crying. I just couldn't believe she was gone. Friends were worried about me. They said, "Look, you have to re-engage. We think that the way to re-engage is in something that your daughter, Lauren, would've cared about a lot."
MR: Do you mind saying who came to you?
BN: It was Richard Emery who did it first. Richard said to me, "You’ve got to get yourself back in the game because this is bad for you to keep doing this. I have exactly what you should get back into. This case has been filed. The lawyers engaged in the case are traditional [Rule] 23 class action lawyers. They're not particularly intellectual. They're not particularly imaginative. They are going to fight with each other for control. It's not going to be a pretty thing. Why don't you get involved?"
I said, "I don't know, Richard, I don't want to do this."
He said, "At least go down and look at it. Look at it."
So I get on the subway, go over to the Eastern District where it was pending. I sit in the back of the courtroom and the judge is Ed Korman.
The spectacle is terrible. He hadn't yet selected a lead counsel, and the lawyers were jockeying. There were at least three sets of lawyers, each one wanting to be lead counsel. It looked like a well-dressed rugby scrum. These were lawyers in the well of the court pushing each other so that they could get to the microphone.
Judge Korman, who was an ascetic, quiet man, was appalled at the spectacle. I'm sitting in the back and I'm appalled. He looks up and he said, "Is that you, Professor Neuborne?"
I said, "Yes, sir."
"What are you doing here?"
"Several of the participants asked me if I'd come and see if I could be helpful, perhaps in remedies." I was working on remedies in those years.
He laughed.
"Remedies! Do you know how far this case is from remedies? Come up here.”
Without any warning, he turns to the lawyers and he says, "What would you say if I appointed Professor Neuborne as co-counsel in all your cases?" That's the last thing they wanted…they needed some woolly-headed intellect dropped on their heads? But if they say no they’d annoy the judge and have no chance of ever being lead counsel. So, they all said, "Well, okay."
So he said, "Done. Mr. Neuborne — you're co-counsel in all these cases. I am going to adjourn the proceedings. The very first thing I want you to do is to organize this case, so that it can go forward. It needs a governing structure. You have to work out a governing structure or the case can't go forward. I want you to come back a week from today and tell me what the governing structure is.”
MR: Do you think anyone tipped him off that you would be there?
BN: I don't think so. No, I think it was absolutely spontaneous. If anybody tipped him off that I was going to be there, I want to get my hands around their throats.
So he let’s us use his conference room and I start talking to the various lawyers and trying to figure out a governing structure. It was the single most important idea that I had in the whole case. I went on to work on this case for years, but the thing that made it work was my governing structure. I realized that although there were a number of lawyers, there were really two competing teams.
One was led by Mel Weiss from New York. Another was led by a group from Philadelphia. I initially thought to myself that I’d create an executive committee. I’d give one team four votes, the other team four votes and I'll take the ninth vote. I quickly realized that that would be disastrous because that would've meant they constantly deadlocked — I'd have to break the tie every time and I would wind up having to run the case myself. So I came up with giving the New York people five votes and the Pennsylvania people four votes and I'm took the 10th vote. Then I said to them, in that conference room, "Unless you guys work together, I will take every five-four vote and turn it into a five-five vote.
I will freeze this case and the case will die. The case will be brought later, but it won't be brought by you because I will kill this case.
MR: That's funny.
BN: They behaved like a military machine. Instead of fighting with each other, they wheeled and went into action against the Swiss and then worked together very, very well until the end. It broke apart in the final negotiations because I was trying to push for as much money in the negotiations as I could get. I had an instinct that there was $1.5 billion that we could get from the Swiss. They had offered $1.25 billion after an excruciating 11 days of negotiation. They threatened to walk away, which terrified several of the lawyers. Because if the Swiss walked away, their fee walks away with them.
So from the time that the Swiss offered $300,000, they were pushing me to accept. I kept saying, "No, there's more. There's more. There's more. There's more." Mel Weiss supported me. When I said there's more after $1.25 billion, the Philadelphia group rebelled. They said, "This is your ego talking. This is an amazing settlement. Nobody ever thought we'd get $1.25 billion. If we push them too far, they'll walk and nobody will get anything. It's just your ego telling us that you can go to 1.5."
I said, "Look, let me make a deal with you. Let me go in there and try. Let me say ‘no’ to $1.25. I promise you if I sense that they're walking, I'll give up and I'll beg and I'll save the $1.25 but let me try for the $1.5."
"All right, go do it." Then they sandbagged me by calling the opposing lawyers and saying, it's a bluff. He's bluffing. He's going to take the $1.25. So we settled for $1.25 billion.
By the way, Richard Emery was right. Working on the Holocaust cases was the best therapy in the world for Lauren’s death.
MR: Were you at any point religious throughout your life?
BN: We’ve always been members of a synagogue. I believe that being a part of a community is an important element of being Jewish.
MR: Did you go to therapy after your daughter’s death?
BN: I did.
MR: Was it not as helpful as the work you did?
BN: It was useful. My wife and I both went. I think it was more useful in assuring that the tragedy didn't blow us apart as a couple. It wasn't as healing as the thought that I was working on something that Lauren would've thought was important.
Medieval History and Creature Comforts
MR: What do you think you would be doing today if you were just starting out your career?
BN: I don't know that I would be a lawyer. I’ve loved being a lawyer and I don't regret a moment of my career, but I don't know. I wanted to be a historian. That's what I wanted to be. I'm a deep student of medieval history.
MR: Medieval history? I didn't know this. What?
BN: Maybe it's my contrariness. My wife, Helen, remembers at Cornell when I was dating her that I used to tease her by telling her that I could tell her all the popes in order.
MR: What medieval history in particular?
BN: Continental medieval history. The Holy Roman Empire. The evolution from Rome into the Renaissance into the Reformation.
MR: Do people know this? I've never heard you speak about this ever.
BN: No.
MR: If one of my readers has never read anything about medieval history before, is there a book you would recommend?
BN: The Waning of the Middle Ages by Huizinga had an enormous effect on me. I was 16 when I entered Cornell. I had skipped grades.
MR: What do you do for hobbies?
BN: I read.
MR: What are you reading right now?
BN: I’m reading books on Confucian judges and judges during 19th century China — the actual operation of the judicial system in China. I had wanted to study for a PhD in either medieval studies or Chinese studies. I had majored in Chinese history at Cornell.
MR: Other than reading?
BN: I'm still a fanatic baseball fan.
MR: Who’s your team?
BN: The Mets, of course.
MR: Do you watch often?
BN: Never miss it. If I can, I don't miss a game.
MR: Do you watch? Do you listen on the radio?
BN: I watch it without sound. I'll be reading a newspaper or a magazine article and it's comforting to me. It's like sitting in front of the washing machine, watching the clothes go around.
MR: If you were painting an ideal afternoon, what’s in your hand that you’re reading?
BN: Maybe an essay in the New York Review of Books. Maybe some Wallace Stevens poetry about the miracle of reading.
MR: Are you in your apartment in the city?
BN: No, I'm outside. I'm under a tree.
MR: Will you have a beer?
BN: No, I don't drink any more. Maybe I’d have a Diet Coke and some cheese.
MR: You tell another joke that I use with everyone — you say you wanted to get a place in the mountains and your wife wanted to get a place on the beach. So, you compromised and got a place on the beach.
BN: Exactly.
MR: Are you a mountain person?
BN: Yes. When I was a kid, my family would go to New Hampshire for two weeks in the summer. I thought that was as close to heaven as you could get.
MR: Where else do you like spending time?
BN: My wife and I have a favorite spot on Earth, and it's Paris.
When we were young, when we were kids in the late '50s and '60s, Paris was the epicenter of culture. It was where everything happened. It's where the writers were. It's where fashion was. It was where the art happened. It was the center of the evolution of my ideas of medieval thought. So, whenever we could, we went to Paris. We spent a sabbatical year in Paris with our two kids.
MR: Do you ever think about living there now?
BN: No. I can't speak French.
MR: Did you ever do any sports?
BN: I was a competitive swimmer.
MR: What do you do for exercise today?
BN: Well, I'm 84. Today, I breathe.
MR: You have to do something.
BN: I walk. I do an elliptical. I do stationary biking.
MR: Where's your favorite place in New York City to be?
BN: The Morgan Library.
The Notorious RBG
MR: You spent time at Harvard — is Boston interesting at all to you?
BN: I found Boston a hard place for a Jew to be. This was in this early '60s.
MR: Did you have any interesting classmates?
BN: Steve Breyer.
MR: Were you friendly with him?
BN: Modestly. He was smarter, a better student, and quicker than I was in school, so I admired him from afar. We weren’t close.
MR: Did you have any justices who were friends of yours?
BN: Yes, I was very close friends with Ruth Ginsburg.
MR: Would you have dinner with her?
BN: Once she went on the bench, we severed our social friendship because it's not an appropriate thing.
MR: What is that like — severing a friendship?
BN: It’s painful. I never had a social dinner with her again.
MR: Did you ever ask?
BN: No.
We both knew it was the right thing to do. I had been too close to her. I was the national legal director of the ACLU when she was the women's rights director. We worked very closely. I considered her a real close friend.
I would see her at professional gatherings. We would sit together at the Second Circuit Judicial Conference. She sent me gracious notes about my books. I would always go up and chat with her and I cared about her, but we ended our social relationship.
MR: That's all so quaint by today's standards.
BN: Yes. I'm an utterly outdated man. To this day, I believe in the legal process. I believe that it is possible to do law and not to do politics. I believe that the rule of law matters and that it's worth fighting for, and that not everything is arbitrary and dependent on which judge you pull, or which political choice the judge makes.
MR: Were you ever offered a judgeship?
BN: No. I knew that if I took the ACLU path, that was not going to happen.
MR: Would you have been a good judge?
BN: I would've been a conflicted judge. I would've been a judge who constantly fought against his politics.
MR: Are there any other judges you were close to?
BN: I'm also friendly today with Sonia Sotomayor because I knew her as a young lawyer. She was a young lawyer for the Puerto Rican Legal Defense Fund and I was a more established figure. I thought that she was really good.
MR: Did you say, “This is someone who could be on the Supreme Court?”
BN: No. We didn't think in those terms. The truth is when I was a young lawyer, it was inconceivable that any civil rights lawyer would go on the Supreme Court. Other than Thurgood Marshall, civil rights lawyers didn't get appointed to the bench anywhere.
63 Years
MR: It seems like you have had a long, happy marriage. Do you have any advice?
BN: Well, yes. I could start a second career as a marriage counselor.
MR: You think you could?
BN: In 63 years, Helen and I have faced a lot of things. A marriage that survives the death of a beloved child has to be a very strong bond. We've had mutual respect. My wife put me through law school. She went to work as a secretary because we needed money in those years. She put me through Harvard Law School, and 10 years later, I left the ACLU and went into academic life so, I could put her through law school.
We’ve had a reciprocal relationship of each of us being the best friend and helper of the other. That bears dividends over the years. There’s a residual sense of each rooting and helping the other.
MR: Does your wife share your politics?
BN: I think that Helen is now to the left of me.
When we met at Cornell, she was a Great Neck kid who wasn’t particularly political. Her formal major at Cornell was French literature, but her friends still tease her that her real major was the China pattern and silver that she would have. It was all about getting married. The importance of getting the silver right.
When I was in law school, I gave her a PHT.
MR: What's that?
BN: “Putting Hubby Through.” She tore it up. She got so mad! 10 years later, with two kids, she graduated at the top of her law school class and went on to a brilliant career as the head of the NOW Legal Defense Fund and the Director of the Ford Foundation’s programs on low-income workers.
MR: In this era, in this world we're living in — I am not saying this as an insult or to be rude in any way — but you're anachronistic.
BN: Oh, no doubt.
MR: What is that like?
BN: It's sad.
Let me say something that sounds egotistical. Socrates was anachronistic. People who live in an era and try to live up to the best ideals of that era are always deemed anachronistic because it always seems that life is moving away from you. It is. I have no regrets about adopting a vision of how one should live and then trying to adhere to it.
MR: In the ‘70s you played a role in all of this. But in this day and age…
BN: I think I still play a role. I play a role in holding a banner of what once was and could be again.
My favorite line of poetry is a line from Robert Frost:
For, dear me, why abandon a belief
Merely because it ceases to be true.