Tales of Hoffman

By Bill Barnhart

Chicago Literary Club, May 17, 2010

c Bill Barnhart

At a school bus stop in one of Chicago’s suburbs, children had their own law. The school district’s superintendent saw it work every morning: “The first child there places his lunch, books or backpack on the ground closest to where the bus door will be when it makes its stop. The next child and other children who arrive place their belongings in successive order behind the first child’s things. The children stop playing when the bus arrives and get in line according to their belongings and board the bus. The discipline of the game the children play determines who’s first on the bus.”¹

The children’s simple bus stop law was especially poignant to the superintendent, whose name was Thomas Van Dam and whose jurisdiction was School District 151 in South Holland, Illinois. The year was 1968. District 151 comprised the virtually all white suburb of South Holland and the virtually all black suburb of Phoenix. In the spring, the U.S. Justice Department under Democratic President Lyndon Johnson sued the district for racial discrimination – the first such action in the North by the federal government since the Brown v. Board of Education school desegregation decision by the U.S. Supreme Court in 1954 and the 1964 Civil Rights Act, which was enacted in part to enforce Brown v. Board of Education. In July, a Republican-appointed federal judge issued a temporary restraining order against the district’s system of assigning students and teachers.

Superintendent Van Dam, who believed that racially integrated schooling was best for children, was new to his post as the 1968-1969 school year began. The district’s board hired him to replace a superintendent who quit in August, as the local desegregation battle boiled over into acts of vandalism, poisonous rhetoric, school boycotts and angry public demonstrations. Van Dam had good reason to remember the civil behavior of his students at the bus stop “One of my first meetings with the community leaders was with the ministers of the various churches to seek their united support for the schools. The meeting began with a prayer and a request for guidance from God in view of the diverse opinions to support or resist the court order. The meeting turned into a heated argument resulting in a schism between the church leaders. There was no closing prayer.”²

Like the gathering of ministers, the United States District Court for the Northern District of Illinois should have been an oasis of detachment and balance under the law, a place where well meaning people on two sides of an issue could craft a solution in good faith to serve the law and the children. It was not to be. Shortly after he was hired, Van Dam declared that he would support the judge’s preliminary desegregation order. But as events proceeded in the grand, two-story high courtroom on the twenty-third floor of the Dirksen U.S. Courthouse designed by famed architect Ludwig Meis van der Rohe he realized that he would not be allowed simply to put his lunch box in line.

“Community hostility toward the federal government was an open wound festered by Judge [Julius] Hoffman’s courtroom demeanor,” Van Dam recalled. “In my opinion, Judge Hoffman’s hostile courtroom behavior toward the school district’s witnesses and attorneys caused the … white communities to feel that any hope of justice or compromise, or even a chance to express one’s opinion, ended at Judge Hoffman’s door.”³

Just as the District 151 case was ending, another controversy literally was erupting in Judge Hoffman’s courtroom. In the infamous Chicago Conspiracy Trial, eight flamboyant and skillful political radicals were charged with conspiracy to cross state lines to cause a riot at the 1968 Democratic National Convention in Chicago. One of their lawyers, William Kunstler, later employed poetic verse to describe the trial judge, Julius Hoffman:

“Throughout the trial, he adhered to his plan

To miss no chance to let the thought sink in

That, long before the evidence began,

He had decided these were guilty men.

Just like the Queen in Carroll’s Wonderland

Decapitation was his first command.”⁴

Few public figures in Chicago have passed from the scene with such a legacy of sharp, entrenched controversy. In fact, it seems hard to say anything about Judge Hoffman that hasn’t already been said. Standing just five-foot-four, with a visage likened to Mr. Magoo (or Elmer Fudd) and a high, whiney voice, Hoffman, as age seventy four, was the small, dense dark matter left over after a star – in this case, America’s pretentions of imperialism in Southeast Asia – implodes. No one deserves to bear such weight, but Hoffman was the individual on whom many Americans projected their support or opposition to the Vietnam War. The most colorful and telling description of Hoffman on the bench I’ve found comes from sketch artist Andy Austin, whose drawings from the trial are justly famous: “Hoffman looked like a freshly hatched bird, some mutant progeny of the eagle in the seal of the United States Court for the Northern District of Illinois above him.”⁵

I recently published a book-length profile of another judge and Chicago native, Justice John Paul Stevens of the Supreme Court of the United States. Justice Stevens was appointed to the federal appeals court in Chicago in 1970, when the conflagrations of the Chicago Conspiracy Trial and the District 151 desegregation order were still smoldering. Not long after five of the original eight Chicago Conspiracy Trial defendants were convicted by a jury, one of them, David Dellinger, spread a rumor that President Richard Nixon had nominated Stevens, a Republican corporate lawyer in Chicago, to the Seventh Circuit bench with the understanding that Stevens would support the government and reject an appeal by the defendants. (You may recall that initially there were eight defendants. Judge Hoffman removed one of them, Black Panther Party leader Bobby Seale, after binding and gagging Seale in his chair in the courtroom. Two defendants were acquitted.)

After Stevens assured me that the Dellinger rumor was false, I asked his opinion of Judge Hoffman. His reply – that Hoffman had been “a fine judge” and a “better scholar than most members of the bench”⁶ – prompted me to give Judge Hoffman another look. Selecting men and women to be judges, either by political appointment or popular election, should be serious business. Today, the U.S. Senate and the American people are reviewing the credentials of Elena Kagan to take Justice Stevens’s seat on the Supreme Court. This process is highly political, but the Hoffman story reveals that personal flaws that might fester during a lifetime appointment to the federal bench go well beyond partisan politics and need to be explored, especially when they co-exist so visibly with an impressive resume. In announcing Solicitor General Kagan as his nominee, President Barack Obama spoke about judicial temperament, which is our topic tonight.

* * * * *

Julius Jennings Hoffman was born in Chicago on July 7, 1895, to Aaron and Bertha Hoffman, first generation immigrants. Aaron Hoffman was a furrier in Chicago. Perhaps with some foresight, his parents gave Julius the middle name of one of America’s most outspoken public figures, William Jennings Bryan, who ran for president on a populist platform a year later. Jules, as he came to be known to his friends, was educated in Chicago’s public schools and the Lewis Institute in Lockport, Illinois. His brother Harry became a prominent psychiatrist – known in common parlance at the time as an alienist.⁷ That’s a piece of trivia worth noting in light of Hoffman’s mercurial reputation during more than three decades on the bench.

By all accounts, Jules blossomed as a law student at Northwestern University, which incidentally was also William Jennings Bryan’s law school. Upon graduation in 1915, Hoffman became a research associate of the school’s legendary dean, John Henry Wigmore, and later taught as a visiting lecturer. In 1959, he was named head of the school’s alumni association. Friends said he loved the law and the legal process.

But Hoffman was no ivory tower recluse. In 1927, he represented Chicago socialite Eleanor Hyman Greenebaum in her divorce suit against her husband, Ernest Greenebaum, Jr., who was a prominent Chicago banker. According to newspaper accounts, Mr. Greenebaum did not contest Eleanor’s claims that he had struck her on several occasions, nor did he claim as community property any of Eleanor’s considerable wealth, which had come from her mother, a member of the family dynasty behind one of Chicago’s oldest and best known companies – known today as Brunswick Corporation, a maker of bowling and billiard equipment. Eleanor won custody of the couple’s two children, Ernest Greenebaum III and William.⁸ A year later, Hoffman married his client. He conscientiously sought to be the boys’ father and a devoted husband to Eleanor, whom he often described as “my supreme court.”⁹

In 1930, step son Ernest got into trouble at his prep school – the Peddie School in Hightstown, New Jersey – for bullying younger students. His words, read today, echo into Hoffman’s future. “When you bully a little fellow, it reflects on your character and your honor, and it brings you into general disrepute,” Hoffman wrote. He warned Ernest “not to beat up boys you know you can lick or even bully them with threatening language.”¹⁰

During his U.S. Army service in World War II, Ernest complained to his step father that he hated the army in general and, in particular, the personal hygiene habits of some of his comrades in arms (apparently, they picked their noses). “I think from here in you must make a real effort to crowd out of your mind the thought that the whole universe revolves around you,” Hoffman replied in 1945 letter. “Don’t always project your troubles onto the environment …. Of course, anyone brought up as you have [been] is not going to enjoy the army, with its regimentation and restrictions. I suppose everyone from General Eisenhower down wants to get out.”¹¹

After the war, Hoffman was bitten by the notion of passing judgment in a bigger, more public venue. In what must have been a shock not unlike what his pampered son felt in the army, he quit his occupation as a private lawyer, which included several years as general counsel to Brunswick, and ran as a Republican for the Superior Court of Cook County. The year was 1947, not longer after the end of the Franklin Roosevelt Democratic juggernaut. Even Hoffman, who with his wife was a major contributor to the Republican Party, thought fondly of FDR and his successor, Democratic President Harry Truman. As to FDR, Hoffman wrote to step son William of his “great affection for Mr. Roosevelt…. He was a president to the manor born and a great friend of the lowly.” Like Hoffman’s father, Harry Truman had tried to make a living as a soft goods merchant. Hoffman called Truman a “haberdasher,” and told William, “We must not forget the humble origin of Abraham Lincoln. And it may be this son of poor Missouri farmers may rise to President Lincoln’s stature. One thing I believe is certain – and that is, that no one will make a more sincere effort to get the best advice and to take it.”¹²

In recommending judicial candidate Hoffman to the Chicago Bar Association, a law partner and friend acknowledged that Hoffman had no experience in the rough and tumble business of criminal cases, which comprised the principal docket of the Superior Court. But he had something that was rare among the denizens of Cook County’s judicial system. The colleague wrote, “He is today in the fortunate position where the sacrifice of this additional income [as a corporate lawyer] will not affect the scale of his living.”¹³ In other words, there appeared to be no reason for Hoffman to go on the take, and there never was a suggestion that he did.

Hoffman quickly developed a reputation as a judge who was tough on lawyers and, quite often, their clients. But given the disreputable image of the Cook County court system among reformers at the time, he seemed to some like a breath of fresh air. In 1949, he ordered a defense lawyer jailed after the lawyer failed to make an appearance in his courtroom. The lawyer, a U.S Air Force captain in World War II and a prominent Chicago attorney, was not pleased. “This is the lousiest court in the County Building,” he said. “You can’t get a thing from this ___________ judge.”¹⁴

Hoffman’s complex temperament was starting to emerge. In a 1949 speech to the Chicago Crime Commission¹⁵, the strict judge called for the repeal of Cook County State’s Attorney John Boyle’s highly political ban on plea bargains in criminal cases. He said the policy was swelling the criminal court docket beyond its capacity and added, “The truth is that our criminal courts can dispose of business only by inducing the great mass of actually guilty defendants to plead guilty, paying in a certain leniency for the plea.” He joined the reformers in urging that the local justice system be removed from politics as much as possible. The state’s attorney should be appointed by the governor, not elected, he said. “A prosecutor, like a judge, should be above local politics.” Precinct captains and other political operatives should not be awarded jobs in the Cook County court system. They should be “freed from fealty to political overlords,” he said. “Get them jobs in other public offices where they cannot interfere with justice.” Finally, he called on the Chicago Bar Association to be more vigilant in assigning court watchers “so that a judge’s qualifications to hold his job can be impartially appraised.”

A year after Republican President Dwight Eisenhower moved into the White House, Hoffman in 1953 received a presidential nomination to sit on the U.S. District Court for the Northern District of Illinois. The widely known contributions by Hoffman and his wife to Republican political candidates prompted speculation that Hoffman simply had bought his seat. Still, he was the first Jew ever appointed to the district court in Chicago, a genuine breakthrough. He had additional attributes that were not to be found among other members of the U.S. District Court.

One of his former law clerks recalled. “He was a great addition [to the court]. A -- he was a Republican; B -- he was smart; C -- he was Jewish, D -- he was liberal. Oh, yeah, he was all those things.”¹⁶ This recent testimony sounds like typical law clerk devotion to a former boss. But it comes from the clerk whom Hoffman summarily fired on the eve of the Chicago Conspiracy Trial in 1969 and who has been one of the best sources of harsh comments that dominate Hoffman’s legacy. As time went on, another Hoffman characteristic important to Chicago reformers arose. He was not a supplicant to or confidant of Mayor Richard J. Daley, first elected in 1955. By the time of the District 151 and Chicago Conspiracy cases, the chief judge of the district was William Campbell, a long-time Daley crony. William Lynch, a former Daley law partner who had a drinking problem, was on the bench. By contrast, when a reporter near the end of Hoffman’s judicial tenure asked him about Daley, Hoffman pointed her to Boss: Richard J. Daley of Chicago, the acerbic and authentic depiction of the first Mayor Daley by columnist Mike Royko, published in 1971.¹⁷ Daley’s friends wanted the book banned.

In a speech to trial lawyers as he moved from the state court system to the federal bench, Hoffman said: “Though I will change my address, I will not change, I promise, except insofar as I may be able to make myself a better judge. When I was elected to the Superior bench, I did not consider it necessary to put on a wig and robe of ostentatious dignity and self-importance. They are not necessary in the United States Court House. I am convinced I have an immunity to life-tenuritis and will not exhibit the posturing, the austerity and arrogance or any of the other symptoms of that dread disease which is traumatic in origin and results most frequently from being kicked upstairs…. I will continue the open door policy which I have pursued in the County Building. I shall always be glad to have lawyers come and talk about the problems which confront us both.”¹⁸

Dawn Clark Netsch, a veteran Illinois politician and Northwestern law professor who was Hoffman’s first law clerk on the federal court, recalled that hundreds of “stale, moth-eaten” cases, motions and other legal matters were dumped on the new judge. The work often required seven-day weeks and effort late into the evening. To find his clerk, Hoffman had reached out to the Northwestern law school Class of 1952. He had delivered a commencement address to Netsch and her classmates. “The class had a very nice feeling about him at that time,” she remembered.¹⁹

Hoffman was committed to clearing his inventory of motions and to forcing lawyers to end their dilatory tactics, according to Netsch. “He was very tough about keeping lawyers to their schedules,” she said. “I’m sure that’s another thing that did not endear him to the bar.” Hoffman preached and practiced the principle that justice delayed is justice denied, Netsch said. “Lawyers tended to do everything they could to delay cases and to do discovery in a way that was absolutely unnecessary – on everything under then sun that had nothing to do with the case. He was not very patient with that. You’re not to going to file three hundred interrogatories [questions by one party in litigation to the other party] when one hundred ninety of them are not relevant.”²⁰

Hoffman and Netsch sound like a mismatch. Netsch, a life-long liberal Democrat, worked hard in the 1952 and 1956 presidential campaigns of Democrat Adlai Stevenson against Eisenhower. Hoffman was a great boss, she said. “He gave me almost total discretion; he was very easy to work for; I don’t believe he ever turned down a draft that I wrote.” When he took his annual summer vacation, he would bring back presents to Netsch and his secretary. He didn’t care much for the places or goings on in Europe, Netsch recalled. He simply liked the ocean liner cruise with this wife. “That was his way of relaxing. He would bring us back lovely gifts. The first time I every heard of Gucci was when he brought back a purse.”²¹ Critics simply suggested that Hoffman liked having young women around.

On substantive matters, Hoffman and Netsch did not always see eye to eye. Netsch, who would become a distinguished Illinois state senator, the first woman ever elected to statewide office in Illinois and the Democratic candidate for governor in 1994, applauded Hoffman’s toughness against white collar defendants. “He was very tough on white collar criminals – the businessmen,” she recalled. “I happened to think that was absolutely appropriate. They were bad. But that might have been the seed planted about what a close-minded martinet he was.” On the other hand, they often disagreed when the defendant was a conscientious objector being drafted into the Vietnam War. “He was much tougher on genuine conscientious objectors than I would have been,” she said.²²

One of her regrets in the less than two years she spent as Hoffman’s clerk was “I rarely got into the courtroom when a case was on trial.” But thanks in part to her behind the scenes efforts, Hoffman found time to present speeches to law groups and write articles for legal publications. In 1953 remarks to the Chicago Bar Association, Hoffman discussed the proper role of federal judges, such as himself, by quoting approvingly Justice Hugo Black, as follows: “Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.”²³

In 1954, the year of the sensational Army-McCarthy hearings that brought the political downfall of anti-communist extremist Senator Joseph McCarthy, Hoffman published in the prestigious American Bar Association Journal a strong, balanced defense of the Fifth Amendment guarantee against self-incrimination.

“One of the advantages of a political crisis is that it makes people think,” Hoffman wrote. “Too many are ruled by their emotions, and their emotions are often unruly.” To Americans made fearful by the poisonous though not entirely unfounded accusations of the McCarthy era, he offered timeless advice: “Even if we were in imminent danger we could find some better defense than the abandonment of our rights. To give them up, in order to make it easier to catch those who threaten them would be like robbing a man of his valuables today in order to prevent a possible thief from stealing them at a later time. Such an absurdity should remind us that we must not take our Constitution for granted but that in our schools, our courts, our forums and our homes we must continue to sell a bill of rights.”²⁴

To a group of newly inducted American citizens, years before the antiwar demonstrations in Grant Park in the summer of 1968, Hoffman defended radical political speech: “In a democracy the dangerous man is not the one who gets up on a soap box and denounces anything or everything to anyone who will listen; rather, it is the man who sits absorbing propaganda with his eyes and ears as he watches television and reads his newspaper without taking the trouble to question what he sees and hears…. We cannot successfully assert the dignity of man and the rights of minorities in other countries unless we show respect for all our fellow citizens and concerns for these rights.”²⁵

In a decision that was celebrated nationally by America’s literary avant-garde, Judge Hoffman in 1960 reversed a decision by Chicago’s anti-smut postmaster Carl Schroeder to ban the distribution of a literary magazine called Big Table, published by students at the University of Chicago, that contained provocative prose material by Beat Generation writers William Burroughs and Jack Kerouac. Hoffman ruled that the material was not obscene and, indeed, had little to do with prurient interests or, as he put it, “libidinous effects.”

“The Kerouac article [“Old Angel Midnight”] does not deal with sex any more than it deals with anything else,” Hoffman said. As to Burroughs’s contribution, “Ten Episodes from Naked Lunch,” about the adventures of a drug addict, the judge ruled that “the dominant theme or effect is that of shocking society in order to point out its flaws and weaknesses, but that clinical appeal is not akin to lustful thoughts.”²⁶

The judge’s defense of free speech in the case of Big Table v. Carl Schroeder reminded some liberal critics at the time of the contemporary words of Chicago writer Nelson Algren, who wrote in The Nation magazine, “The artist is the man who endures society’s hostility and even its scorn in order to point out the sickness at its heart.”²⁷ The Illinois Division of the American Civil Liberties Union hailed Hoffman’s ruling, issuing a press release that said, “This is one of the most important censorship decisions since the federal courts decided in 1934 that the American people could read James Joyce’s Ulysses.”²⁸

Despite such evidence of progressive tendencies, other evidence emerged that Judge Hoffman was succumbing to life-tenuritis, as he put, and was becoming a defender of the wealthy establishment he had married into years earlier, instead of serving as a bulwark for those who, in Justice Black’s words, might otherwise suffer because they are helpless [or] weak. By the time of the District 151 and Chicago Conspiracy cases, the judge had established himself as at least a curiosity in the federal building. His chambers were lavishly appointed with expensive furniture and artwork. His stated willingness to work on an equal basis with lawyers for litigants became less evident. Oddly, lawyers working in the building charged that Hoffman was most highly critical of Jewish lawyers. Tom Hayden, one of the Chicago Conspiracy defendants, playfully called Hoffman “an over-assimilated Midwestern Jew.”²⁹

In 1966, Supreme Court Justice Black rebuked Hoffman sternly in a David and Goliath case involving alleged financial shenanigans by wealthy insiders at the giant Hilton Hotels Corporation. Dora Surowitz, a small shareholder in Hilton, was a Polish immigrant with little education and a poor command of English. But her son-in-law and financial adviser was a Harvard educated lawyer and holder of a master’s degree in economics from Columbia University. A series of suspicious dealings by Hilton officers and major shareholders prompted the son-in-law and a sympathetic lawyer to investigate and develop credible charges that Hilton was being looted from the inside. With Dora Surowitz as the aggrieved shareholder-plaintiff, the son-in-law and lawyer filed what is a known as a shareholder derivative suit on behalf of shareholders against the corporation. After Dora’s testimony showed that she did not fully understand the intricacies of her formal complaint, Judge Hoffman dismissed the suit as a fraud and sham, as defined by a federal rule of civil litigation procedure intended to prevent extortionate and frivolous suits. His ruling was upheld by the U.S. appeals court in Chicago.

In reversing Hoffman and the appeals court, Justice Black, with no dissenters, wrote that derivative shareholder suits were supposed to protect small investors from “the designing schemes and wiles” of corporate insiders. “And it is not easy to conceive of anyone more in need of protection against such schemes than little investors like Mrs. Surowitz… The dismissal of this case was error. It has now been practically three years since the complaint was filed, and as yet none of the defendants have been compelled to admit or deny the wrongdoings charged. They should be.”³⁰ The accused Hilton insiders quickly settled with Mrs. Surowitz.³¹

In the early 1960s, Judge Hoffman helped resolve or at least postpone a dispute over racial segregation in the Chicago Public Schools. He commended all parties for a resolution that avoided a trial. “Without the acrimony that often attends a court trial, with the acknowledged wish on both sides to serve the best interests of the children of Chicago, you have reached an agreement that does credit to all parties concerned,” Hoffman told the litigants. “There are no losers among you and by your proposed attempt to solve a crucial problem you have produced an important victory for the forces of reason and decency, for the cause of good education and improved human relations.”

“By one means or another,” he went on, “our schools will be integrated, not only because segregation has been banned by law but also as a result of the growing realization that our country cannot afford to suffer the losses incurred through racial segregation in educational institutions.”³²

By the end of the 1960s, Hoffman’s tone had become less conciliatory toward white parents and school officials. In his initial order again District 151, Hoffman emphasized that nearly fifteen years had passed since the Brown v. Board of Education decision. When a Chicago Tribune editorial blasted Hoffman’s desegregation order as “dangerous,” Hoffman replied, in a letter to the newspaper that apparently was not sent, “It isn’t easy to shed tears for South Holland.” He was especially annoyed by the Tribune’s assertion that the U.S. Justice Department under Democratic President Lyndon Johnson had acted by whim to impose its will on the schools of cities all over the country. “On what ground can an order to comply with the law be considered capricious and tyrannical?” he wrote.³³

Beneath the predictable reactions from the political left and right to Hoffman’s District 151 ruling, analysis by both camps noted something important that had not escaped the attention of District 151 officials. “My faith in the federal judicial system was shaken when it became obvious from the first day of the first hearing that Judge Hoffman had already made up his mind and proceeded to aid the prosecution in every way possible,” said the District board chairman.³⁴ Hoffman, who was holding a lifetime appointment intended to keep him impartial, had joined the government’s side in this case, school officials believed. It wasn’t political or cultural partisanship as much as establishment partisanship.

At least one scholar maintains that Judge Hoffman suffered from an “authoritarian personality.”³⁵ Frankly, an authoritarian personality in moderation seems like a positive trait in a trial judge, as Hoffman demonstrated early in his tenure. Such a superficial diagnosis, like the inadequate labels of a liberal judge and a conservative judge, does not explain the conflicting performances by Hoffman. In his voluminous files of letters from the public, he was sometimes lambasted and applauded by the same writer, usually someone angered by the District 151 decision but pleased with the guilty verdicts in the Conspiracy Trial. One element of importance that changed between the two cases was that conservative Republican Richard Nixon, who ran for office on a law-and-order theme, was president when the Chicago Conspiracy indictments were brought, while civil rights champion President Johnson was in the White House when the Justice Department sued District 151.

After Hoffman retired, his former adversary William Kunstler said he had developed sympathy for the judge: “He was not the villain I was thought he was,” Kunstler told legal journalist Rob Warden. “He was manipulated and used. I know now that the FBI got to him long before the trial started and played on his vanity and his own infallibility and convinced him that we were going to make a mockery of his courtroom; that he had to crack down from the beginning. He truly believed that the defendants were evil, obstreperous, and bad men. He believed he was dealing with the devil. Agents of the government, who had no more concern for him than they had for the defendants, destroyed him. He was victimized, just as we were.”³⁶

No corroborating evidence has emerged to validate Kunstler’s claim, but I find it persuasive and far better than any other retrospective I’ve seen or heard regarding Hoffman. Hoffman as a judge was like a protective dog lying before a fire. Any disturbance to the home would cause him to rise up and bark. Hoffman’s beautiful, dignified courtroom, which he decorated with mementos about himself; his richly appointed chambers; and the structure of the law itself were his territory. A telling exchange between Hoffman and Kunstler during the Chicago Conspiracy Trial is heavy with meaning, in my view.

Hoffman: Mr. Kunstler, there is a great architect, Meis van der Rohe, who lately left us. He designed the lectern as well as the building, and it is a lectern, not a leaning post. I have asked you to stand behind it when you question the witness.

Kunstler: Your honor, I think the U.S. attorney questions from this table here –

Hoffman: I don’t permit lawyers to lean on that thing. I don’t want you to do it…. That was put there by the government, designed by Mr. Van der Rohe, and I want you to use it for that purpose.”³⁷

Anyone who threatened or disturbed Hoffman’s lair would be repelled. Anyone who entered with empathy and support would be welcomed. It didn’t take litigants, especially the federal government, long to figure this out. Kunstler realized it well after the trial ended. I’m not talking about bribery, or giving a dog treats. I’m talking about displays of respect for Hoffman’s one world, as the way through his door.

For an intriguing piece of evidence, I must divert from a discussion of judicial temperament to a topic perhaps more fitting to the Chicago Literary Club. I need to quote the poet John Donne, who lived from 1572-1631. After centuries in obscurity, Donne became much in vogue in the 1920s and 1930s, around the time Jules married Eleanor. In marriage ceremonies he later performed as a judge, including the 1963 marriage of Dawn Clark and noted architect Walter Netsch, Judge Hoffman frequently quoted from Donne’s poem “The Good-Morrow,” about “two lovers who have turned their backs upon a threatening world … to discover a new world in each other.”³⁸

Here’s the portion of the poem that Hoffman chose:

“Love, all love of other sights controls,

And makes one little room an everywhere,

Let sea-discoverers to new worlds have gone,

Let maps to other, worlds on worlds have showne,

Let us possess one world, each hath one, and is one.

My face in thine eye, thine in mine appears,

And true plain hearts do in the face rest;

Where can we find two better hemispheres,

Without sharp north, without declining west?”³⁹

Hoffman’s insularity did not first emerge in the Chicago Conspiracy Trial. His friends sensed the problem in advance. “When his name was drawn [for the trial] (my impression was that it was legitimately drawn) those of us who knew him said, oh, my god, it’s a Greek tragedy in the making,” said Netsch. “We knew it would be awful.”

She and Northwestern law professor Harry Reese tried to warn Hoffman. Over drinks in the Drake Hotel, where Hoffman lived, “We tried the best way we could to get through to him that he was going to be sorely tried by these folks and he needed to keep his cool and keep his calm. We saw each other the next day and we said we didn’t get through at all.”⁴⁰

Hoffman was the perfect trial judge for both sides, the government as well as the radicals drawn from the demonstrations in Chicago during the Democratic National Convention. “These guys could not have lucked out better in terms of what they wanted to do, because they had the perfect foil,” Netsch said. “These guys tried to make a mockery of him and a fool of him, which they were very good at doing. It was completely contrary to his sense of what is right in the world”⁴¹ -- his “one world,” as poet Donne would say.

Especially in Chicago, writers tend to follow the Nelson Algren school of character description. You are either a reformer or a boodler, a hero or a bum. As Studs Terkel put it in his tribute to Algren, in the Nelson Algren lens you were a Jane Addams or an Al Capone, a John Peter Altgeld or a Richard J. Daley, a Clarence Darrow or a Julius Hoffman.⁴² But which Hoffman, the judge who allowed the Big Table magazine to be mailed and black students to line up at the bus stop with whites or the judge who bound and gagged Bobby Seale?

The answer is that the judicial selection process should try to avoid the question ever arising. The most important characteristic of Justice Stevens, who in my opinion is the temperamental opposite of Judge Hoffman, is his view that service on the bench is a job -- not a calling or an entitlement. Although Solicitor General Elena Kagan holds a terrific resume as the nominee to succeed Justice Stevens, I am troubled by one thing. Since high school, it seems, she has wanted to wear judicial robes. Former Illinois Senator Charles Percy, who first brought up Stevens name for a federal court nomination in 1970, had a laudable rule that he followed almost without exception as Illinois’ senior senator for fifteen years, from 1970 through 1984, when he was defeated. Anyone who wanted a federal judicial nomination would not be chosen. Stevens was the nominee through which Percy first exercised this excellent principle. One way to prevent another Julius Hoffman from embedding himself in the law and over-assimilating to the establishment, is to follow the Percy rule.

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FOOTNOTES

1. Thomas E. Van Dam, Who’s First on the Bus?: The History of Desegregation in School District 151, South Holland, Il., Exposure Publishing, 2006, p. 86.

2. Van Dam, Who’s First on the Bus?, p. 87.

3. Van Dam, Who’s First on the Bus?, pp. 99-100.

4. William M. Kunstler, “Judge Julius Jennings Hoffman,” Chicago Lawyer, June 1982, p. 5.

5. Andy Austin, Rule 53: Capturing Hippies, Spies, Politicians, and Murderes in an American Courtroom, Lake Claremont Press, 2008, p. 9.

6. Justice John Paul Stevens, interview with Bill Barnhart, March 6, 2007.

7. George Tagge, “Julius Hoffman Reported G.O.P. Choice as Judge,” Chicago Daily Tribune, Aug. 8, 1947, p. 9.

8. “Wife Divorces Greenebaum Jr./Given $250,000/Son of Bank President Declines to Fight Suit,” Chicago Daily Tribune, Nov. 20, 1027, p. 12. “Beg Your Pardon,” Chicago Daily Tribune, Nov. 24, 1927, p. 43.

9. Bess Winakor, “Big Julie From Chi,” Women’s Wear Daily, Sept. 14, 1971, p. 5.

10. Julius J. Hoffman, letter to Ernest Greenebaum, Dec. 12, 1930, Julius J. Hoffman Papers, Chicago History Museum, Box 29.

11. Hoffman, letter to Ernest Greenebaum, May 19, 1045, Julius J. Hoffman Papers, Chicago History Museum, Box 29.

12. Hoffman, letter to William Greenebaum, April 14, 1945, Julius J. Hoffman papers, Chicago History Museum, Box 29.

13. Roger Q. White, letter to Chicago Bar Association, Sept. 15, 1947, Julius J. Hoffman Papers, Chicago History Museum, Box 29.

14. “Judge Decrees Day in Jail for Lawyer Critic; Imposes $200 Fine on Absent Attorney,” Chicago Daily Tribune, Feb, 8, 1949, p. 16.

15. Hoffman, speech to Chicago Crime Commission, Sept. 22, 1949, Julius J. Hoffman Papers, Chicago History Museum, Box 35.

16. Kenneth Gaines, interview with Bill Barnhart, May 5, 2010.

17. Bess Winakor, “Big Julie From Chi,” Women’s Wear Daily, Sept. 14, 1971, p. 5.

18. Hoffman, undated speech to Chicago trial lawyers, Julius J. Hoffman Papers, Chicago History Museum, Box 31.

19. Dawn Clark Netsch, interview with Bill Barnhart, April 20, 2010.

20. Dawn Clark Netsch interview.

21. Dawn Clark Netsch interview.

22. Dawn Clark Netsch interview.

23. Justice Hugo Black, quoted by Hoffman, “The Federal Judiciary Today,” Chicago Bar Record, Oct. 1953, pp. 22.

24. Julius J. Hoffman, “Whom Are We Protecting: Some Thoughts on the Fifth Amendment,” American Bar Association Journal, vol. 40, July 1954, p. 584.

25. Julius J. Hoffman, “Remarks of United States District Judge Julius J. Hoffman,” Chicago Bar Record, vol. 38, no. 7, April 1957, p. 317.

26. Julius J. Hoffman, decision memorandum, Big Table, Inc. v. Carl A. Schroeder, Paul D. Carroll Papers, Box 12, University of Chicago Regenstein Library Special Collections, pp. 9-10.

27. Erick Steinhoff, “The Making of Chicago Review: The Meteoric Years,” pp. 311-312. http://humanities.uchicago.edu/orgs/review/52-234_steinhoff.pdf

See also, The Chicago Review Anthology, University of Chicago Press, 1959.

28. American Civil Liberties Union, Illinois Division, press release, July 5, 1960, Paul D. Carroll Papers, Box 12, University of Chicago Regenstein Library Special Collections.

29. Tom Hayden, quoted in Pninia Lahav, “The Chicago Conspiracy Trial as a Jewish Morality Tale,” Lives in the Law, ed. by Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey, University of Michigan Press, p. 26.

30. Surowitz v. Hilton Hotels Corp. et al, 383 U.S. 363, March 7, 1966.

31. “13 Hilton Directors Agree to Settle Suit,” Chicago Tribune, Nov. 17, 1966, p. C5.

32. Julius J. Hoffman, remarks, “Board of Education Case,” August 1962, Julius J. Hoffman Papers, Chicago History Museum, Box 31.

33. Julius J. Hoffman, “Answer to Chicago Tribune editorial of Dec. 19, 1968,” Julius J. Hoffman Papers, Chicago History Museum, Box 24.

34. Lou Wiersman, quoted in Van Dam, Who’s First on the Bus?, p. 126.

35. Pnina Lahav, “Law and Character: The Chicago Conspiracy Trial,” University of Colorado Law Review, vol. 71, no. 5, 2000, pp. 1327-1364.

36. Rob Warden, “Hoffman Retires,” Chicago Lawyer, June 1982, p. 6.

37. United States v. Dellinger et al, 69 CR180 (N.D. Ill.), trial transcript, quoted in J. Anthony Lukas, The Barnyard Epithet and Other Obscenities: Notes on the Chicago Conspiracy Trial, Perennial Library, Harper & Row, Publishers, 1970, pp. 3-4.

38. John Donne, Biography, Poetry Foundation, http://www.poetryfoundation.org/archive/poet.html?id=1825.

39. John Donne, The Good-Morrow,” Poems of John Donne, Vol. 1, E. K. Chambers, ed., Lawrence & Bullen, 1896; see also http://www.luminarium.org/sevenlit/donne/goodmorrow.htm .

40. Dawn Clark Netsch interview.

41. Dawn Clark Netsch interview.

42. Studs Terkel, “Introduction,” Nelson Algren, Chicago: City on the Make, 50^th Anniversary Edition, The University of Chicago Press, pp. 2-3.