Tag Archives: President Lyndon Johnson

Hangin’ with Judge Hoffman

POST #7

This is the seventh in a series of posts that recall what it was like to clerk for Judge Julius J. Hoffman from 1967 to 1969.

The “Chicago 7” Trial

            In the spring of 1969, shortly before I was to leave my clerkship, a new case arrived in Hoffman’s chambers.  It resulted from a grand jury’s investigation into the events that had transpired in Chicago the previous summer, just before and during the Democratic National Convention in August 1968.  Eight men, later known as the “Chicago 8,” were accused of violating a new federal law, the Anti-Riot Act, by inciting demonstrations and violent encounters with the police in the streets and parks of Chicago.

            Countless books and articles have been written about this trial, sometimes called the Chicago “conspiracy trial,” and I’ve also seen a number of dramatic presentations on the stage, TV, and film. I don’t question the validity of any of these and won’t comment on them here.

            In 2020, a new film, written and directed by Aaron Sorkin, “The Trial of the Chicago 7,” appeared on our screens.  I’ll comment briefly on that film later.

            Because I clerked for Judge Julius J. Hoffman from 1967 to 1969, and because I lived in Chicago during that tumultuous time, I want to state my personal comments on the trial and the events that led up to it. 

            In this post, I’ll state my point of view as someone in a unique situation, working with Judge Hoffman at the very outset of the case, and who–after the trial was over—briefly talked to him about it.

First, some background 

I began my clerkship with Judge Hoffman during the summer of 1967, and I served as his junior clerk until the summer of 1968, when I became his senior clerk for a year.  My two-year clerkship ended during the summer of 1969.  Throughout my clerkship, I was living in my hometown of Chicago.  To help you comprehend the significance of the trial and surrounding events, I want to put them into some sort of context.

My remarks are based on my personal recollections of Chicago during those years.

            First, I was well aware of the rampant corruption in the city.  At the time, I sometimes described the city’s government as a “benevolent dictatorship.” Looking back, I no longer view it as “benevolent,” but it certainly was a dictatorship.

            The city’s government was dominated by one man:  Richard J. Daley, who served as the city’s mayor from 1955 until his death in 1976.  He not only held the executive leadership role, but he also made sure that local ordinances and everything else he wanted were enacted by a complicit city council filled with his acolytes (I recall only one dissenter during those years, an alderman named Leon Despres).  In addition, he decided who would fill local judicial openings.  As a result, the state courts were rank with incompetent judges loyal to Daley and his machine.

            Federal judgeships were somewhat different.  Many if not most of the judges were more or less independent of Daley, at least once they were on the bench.  Even though these judges probably were not totally lacking corrupt motives of their own, most of them (including Democratically-appointed judges who had some connection to Daley in their past) were not necessarily loyal to the Daley regime. 

            Judge Hoffman was a Republican appointed by Dwight Eisenhower and to my knowledge not connected in any way to the Daley machine, although I suspect that many members of the public thought he was. At a luncheon in Chicago in 2001, I was seated next to a prominent news anchor who voiced his assumption that Hoffman was part of the Daley machine.  I immediately corrected him.

Political developments during 1968

            By early 1968, many Democrats had grown restless with the presidency of LBJ.  National politics heated up when a number of men announced that they hoped to replace him.

            The heat became intense on March 31, when LBJ announced in a live TV appearance that he would not run again. (I recall watching him make that stunning announcement.) 

            LBJ reportedly dropped out because Senator Eugene McCarthy of Minnesota had won 42 percent of the vote in the New Hampshire primary, while LBJ won only 49 percent.  McCarthy was the leading voice advocating an end to the Vietnam War, a position that was becoming increasingly popular.  McCarthy’s primary showing led Senator Robert F. Kennedy of New York to enter the race a short time later.   Like McCarthy, he ran on an antiwar platform and advocated a number of other popular positions.

Even before LBJ’s announcement on March 31, I—like so many others– had become disillusioned with him, despite all of his remarkable accomplishments in the domestic realm, because of his increasing and unwavering support of the Vietnam War.  I never considered supporting Republican Richard Nixon, who had run and lost to JFK in 1960 (and later lost his race for governor of California).  I loathed Nixon for a great many reasons.   But for a while, New York’s relatively moderate Republican governor, Nelson Rockefeller, seemed like a possible alternative to LBJ. 

During a visit to New York City to visit friends in early March, I accompanied one of them to a meeting of the NYC bar association, where Rockefeller was the main speaker.  As he finished his speech and left for the exit, I ran after him.  Just outside the building, I approached him and stuck out my hand to shake his.  “Please run for president,” I urged him as we shook hands.  He smiled and said, “Well, aren’t you dear?” before descending the steps to his waiting car. 

I often wondered how things might have turned out if Rockefeller had taken the advice I offered him on those steps before Nixon’s grip on his party became too strong to overcome.  A short time later, LBJ dropped out of the running, and the Democratic race was wide open.  Rockefeller no long held any real appeal for me.  Now, with LBJ out of the picture, I would decide who, among the Democratic candidates who remained in the race, I’d support.

The Democratic National Convention, which would choose the ultimate nominee, was scheduled to be held in Chicago in late August of 1968.

My life in Chicago

I tried to keep up with political developments that spring and summer, but truthfully, I was primarily focused on the things that dominated my everyday life.  First, there were my responsibilities as Hoffman’s law clerk.  Then there was travel, like my trip to NYC in early March.  I also spent time with old friends I’d known for years along with some new ones.  And then there was my attempt to meet potential suitors.  (I was focused on my career but not to the exclusion of marriage and kids.)

In April, Chicago was rocked by the murder of Martin Luther King Jr. in Memphis.  Fires and looting broke out in parts of the city.  I recall visiting the apartment of someone I was dating at the time.  Together we stood at the windows of his high-rise apartment in Sandburg Village viewing the widespread fires we could see below.  I was immensely saddened by King’s death and the terrible destruction that followed.  But my own everyday life didn’t really change.

Was I aware of the efforts by antiwar activists who were gearing up for the DNC in August?  Just barely.  I often watched local TV news and read the daily Chicago Sun-Times, so I was vaguely aware that there was a Yippie movement headed by Abbie Hoffman and Jerry Rubin.  Didn’t they publicize a stunt where they brought a pig to Chicago, announcing that it was a candidate for president?  Because that struck me as pretty ridiculous, it was hard to take them seriously.  

I probably had read something about Tom Hayden and the SDS, but I honestly knew very little about them.  I was also vaguely aware of the Black Panthers, led in Chicago by Fred Hampton, but their agenda didn’t have any noticeable impact on my everyday life.

I did follow the campaigns of the leading Democratic hopefuls.  Eugene McCarthy was my early favorite, but by early June I was considering shifting my allegiance to RFK.  I was therefore horrified, along with the rest of the country, when he was assassinated in the Ambassador Hotel in LA that June.  I had lived very near the Ambassador when I briefly lived in LA at the age of 12, where my family’s first home was a rented apartment on Normandie just off Wilshire Boulevard, a location very close to the Ambassador, and I had strolled near there.  That memory made RFK’s assassination even more real to me than it might otherwise have. 

After he died, I returned to supporting Eugene McCarthy, but I ultimately resolved (with reservations) to support LBJ’s vice president, former Minnesota Senator Hubert Humphrey, as the most electable of the Democratic candidates for president.  Humphrey had a long and admirable record as a liberal Democrat who had supported civil rights legislation and other liberal causes for many years.  But although he earned the support of liberal senators like Fred Harris of Oklahoma and Walter Mondale of Minnesota, he faced vehement opposition because of his adherence to LBJ’s Vietnam policies.  He spoke out against Senator McCarthy and Senator George McGovern’s call for an immediate end to the bombings in Vietnam, an early withdrawal of troops, and setting talks for a coalition government with the Viet Cong. 

Humphrey didn’t enter any of the primary elections held in 13 states, but he won the party nomination at its chaotic convention in Chicago in August.  He lost the November election by less than one percent of the popular vote, but he carried only 13 states. 

The Democratic convention and the events surrounding it led to the trial of the “Chicago 7.”

My vacation that summer

I planned to take my summer vacation during the convention for a simple reason: A close friend who lived in NYC asked me to join her on a road trip that would leave Chicago just as the convention was beginning. I was living paycheck-to-paycheck (my salary was $6,000 for the year), so I jumped at the chance to get an essentially free ride to NYC. 

My friend was coming to Chicago for a wedding, and we would leave on our road trip to NYC on Sunday, August 25, just as the convention was about to begin.  I planned to see friends in NYC and Boston, and then travel from Boston to Cape Cod with another close friend.  Because I was busy making my vacation plans, I was largely insulated from news about the convention.

In Hoffman’s chambers, things at this point seemed routine.  I was largely preoccupied with ruling on the case of The Inmates of Cook County Jail, which I’ve discussed in Post # 4.  As I mentioned in that post, I left my semi-radical opinion on Hoffman’s desk on Friday afternoon the 23rd for him to read while I was away.  (I was later amazed on my return to Chicago to learn that he’d read this opinion from the bench during my vacation.)

I was living that summer at 1360 Lake Shore Drive (where the rent on my studio apartment was a whopping $140 a month).  My mother lived a few miles farther north at Lake Shore Drive and Aldine.  Leaving my mother’s apartment the Saturday night before I was to take off on my vacation, I rode on a bus that drove through Lincoln Park (the largest park on the North Side of the city) en route to my apartment.  I was startled to see masses of people gathering in the park shortly before the convention was to begin.  During the work week, I’d been similarly shocked to see U.S. Army jeeps driving up and down city streets in downtown Chicago when I walked to work in the Federal Building on Dearborn Street. 

Both unprecedented sights made me wonder exactly what might happen in the city during the convention.  But these somewhat shocking events weren’t front and center in my mind.  I remember feeling kind of glad to be leaving town and avoiding what promised to be ominous events happening in Chicago while I was away.

Did I follow the news during my road-trip vacation?  Not really.  So I was pretty much unaware of what was happening at the convention.  But once I arrived in NYC, I stayed with a friend in Greenwich Village and, on the night that became notorious, I watched the convention with her and her husband on their living-room TV.  Needless to say, I was shocked by what I saw.  And terribly embarrassed by the behavior of Chicago’s Mayor Daley, revealed for all to see on TV.  I remember watching Senator Abe Ribicoff speaking at the podium, nominating George McGovern for president, and defying Daley, whose henchman booed the U.S. senator from Connecticut.  Daley was caught on camera mouthing expletives about Ribicoff that TV wouldn’t or couldn’t describe.

At the same time, TV news coverage highlighted what was happening elsewhere in Chicago.  The convention was held at the International Amphitheater, a considerable distance from the center of the city.  But a multitude of antiwar protesters had gathered in the very large downtown park, Grant Park, located adjacent to Michigan Avenue.  These protestors created havoc as they began to move onto Michigan Avenue.  The resulting chaos, and the violent reaction to the protestors by the Chicago police department, seen across the world on TV, was later described as a “police riot.”

In NYC, I put that chaotic vision aside and went on to meet another friend in Boston.  We traveled together to Cape Cod, where we heard that Humphrey had chosen Maine Senator Edmund Muskie as his VP.  Muskie seemed like a good choice, and despite the turmoil in the Democratic Party, I was hopeful that the Humphrey-Muskie ticket could defeat Tricky Dick.

Flying back to Chicago to resume my life there, I discovered that things had largely settled down.  What had happened during the convention didn’t loom large in my mind as I began to pay close attention to the much more compelling 1968 election campaign.  The outcome would steer our country down Humphrey’s path or down a very different one.

In November, I was plunged into gloom by the dispiriting Nixon victory.  I remember watching election-night news coverage in agony as Tricky Dick’s votes added up.  I saw his victory unfold on my tiny black-and-white TV, seated on my sofa next to a date who’d asked me to accompany him earlier that evening to a performance of “Jacques Brel Is Alive and Well and Living in Paris” at The Happy Medium.  Maybe because I associated the guy with that terrible night, I was OK when he gradually faded from my life.  I honestly didn’t care if I never saw him again.

Nixon’s victory changed everything. 

To be continued….

Hangin’ with Judge Hoffman

POST # 6

This is the sixth in a series of posts recalling what it was like to serve as a law clerk to Judge Julius J. Hoffman during 1967 to 1969.

Sitting on the Seventh Circuit

            Judge Hoffman was always worried about the fate of his rulings in the appellate court, the U.S. Court of Appeals for the Seventh Circuit, which reviewed the rulings of the district courts in the circuit, including ours.

            The Seventh Circuit was made up of appellate judges who sat in three-member panels in a courtroom in the same courthouse as the district court courtrooms.  But, as I recall, the Seventh Circuit courtroom was larger, was on a higher floor than the district court courtrooms, and was grander in every way.  The court, as an appellate court, also conducted its proceedings in a far more rarefied atmosphere than the one that permeated the more rough-and-tumble atmosphere at the trial court level.

            Hoffman was frequently reversed by the Seventh Circuit.  In the process, he was often severely criticized by one or more appellate judges for the way he had conducted a trial or reached a legal conclusion.  The South Holland school-district case was a prime example.  Another example was the Amabile case, in which the Seventh Circuit opinion pointed out how easily Hoffman could have avoided reversal if he hadn’t so adamantly refused to ask the jury about the influence of the media on the jury’s thinking.

            Of course, the “Chicago 7” trial was the leading case in which Hoffman was eventually slapped down by the Seventh Circuit.  (I’ll say much more about that trial soon.)

            In early 1969, despite his spotty record with the Seventh Circuit and several months before the “Chicago 7” trial, Hoffman was asked to sit “by designation” on a panel of the Seventh Circuit.  The U.S. Courts of Appeals were at that time frequently overwhelmed by their caseloads, and they would ask retired judges or district court judges to sit by designation on a panel made up of two regular appellate court judges and one non-regular judge. 

            There was great excitement in Hoffman’s chambers when he was asked to do his bit for the Seventh Circuit.  He was thrilled to play the role of appellate judge for a change.  I’m quite sure that he longed to be appointed to the appellate court (he called it being “kicked upstairs”), but that plum had never been offered him.  At least he could now be Appellate Judge for a Day.

            As senior clerk, I was assigned to assist the judge in this new and challenging role.  So when the briefs in the case he was to hear arrived in our chambers, he asked me to read them and prepare questions he could ask during the oral argument.  This sounded reasonable enough.  He was busy with his routine courtroom work and didn’t want to devote much time to the appellate briefs. 

            Still, I did expect him to scan the briefs and have some knowledge of the issues before the oral arguments would be heard.

            I was myself excited about assisting the judge with his new role as appellate judge.  I hadn’t applied for a clerkship with an appellate court, a clerkship that was (like the role of appellate judge vs. that of trial-level judge) more prestigious than the clerkships I applied for with the Northern District of Illinois.  Looking back, I probably didn’t explore the possibility of an appellate clerkship because I was pretty sure that I had a better chance of getting a clerkship with the district court, when securing even one of those was a challenge for a woman applicant in 1967. 

            I’d therefore resolved that if I was offered a clerkship with the Northern District, which was based in my hometown of Chicago, I would grab it and forgo my inclination to work as a lawyer in Washington, D.C. 

            I’d always been fascinated with being at the center of power in D.C.  But at the time of my last year in law school, Lyndon Johnson had squandered the remarkable record he’d acquired on domestic issues (for example, propelling the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and creating the Office of Economic Opportunity) by plunging further and further into the disastrous Vietnam War.  I decided to await the results of the presidential election of 1968 before committing to D.C.  So I was quite happy to accept a district court clerkship in Chicago.

            My own affinity for appellate-level work had been sparked when I participated in my law school’s moot court program, the Ames Competition.  In my first attempt at appellate brief-writing in the fall of my first year, I’d triumphed over a male classmate who was openly miffed that he was assigned to compete against a woman student.  He was overheard complaining that “If you win against a girl, you’ve only beat a girl.  And if you lose to a girl, you’ve been beaten by a girl!” 

            Some of my closest and longest-lasting friendships began in law school, and a great many of them are with male classmates.  But it’s entirely possible that, at that time, there were some others among my male classmates who shared the same misguided notion as my Ames opponent. 

            All of which made my victory especially delicious when I walloped him in moot court.  I earned a higher score from our three male judges, both on our oral arguments and on our briefs.  I almost felt sorry for my opponent.  His lawyer-father had traveled a thousand miles from the Midwest to witness his son’s humiliating defeat.

            Competing in moot court, I discovered my love of brief-writing, and I continued to compete in the Ames Competition as long as I could, hoping to do brief-writing during my career as a lawyer.  As things turned out, I did write appellate briefs during my career, and I went on to teach appellate brief-writing to students at law schools like Northwestern and the University of Michigan.

            The day Hoffman sat on the Seventh Circuit, I was present in the imposing courtroom, perched on a chair just behind the judges.  Once the oral arguments began, the judges were free to interrupt the lawyers with questions, and I had provided Hoffman with a list of challenging questions for both sides. 

            I was shocked when Hoffman finally spoke and revealed his vast ignorance of the legal arguments presented in the briefs. 

            He asked the right questions, of course (I had written them out clearly for him), but he asked them at the wrong time.  Once or twice, he asked a question that a lawyer had already answered, and the lawyer was forced to repeat what he had said a few minutes earlier.

            Hoffman also asked some questions completely out of context, revealing his total lack of understanding of the issues.  As the appellate lawyers struggled to complete their well-prepared presentations, I cringed.  The man was smart enough.  He simply hadn’t bothered to learn anything about the case being argued in front of him, and it showed.

            After the argument, the three judges and their law clerks adjourned to the chambers of one of the appellate judges, and the judges took an informal poll of where they stood.  Once the two appellate judges announced how they were leaning (the two were tentatively in agreement), Hoffman of course jumped in and agreed.  He was then assigned the task of writing the court’s opinion.

            Back in our chambers, Hoffman asked me to write the opinion.  I was excited and eager to bite into the apple of appellate opinion-writing, something I’d never expected to do while working for a trial court judge.  I immediately immersed myself in the law that applied to the case. 

            The law turned out to raise serious constitutional questions.

            The legal issues were complex, and I discovered that I was not completely sold on the outcome the three judges had tentatively agreed upon.  I began going back and forth, one day deciding in favor of the appellant, the next day agreeing with the appellee. 

            Looking for help, I sought out one of the appellate judges’ law clerks.  He was a friend I’d known in law school, and I was sure that he could give me some guidance.  But, like me, he seemed uncertain which way to go, so our brief discussion didn’t help me resolve my internal debate.

            Once or twice, Hoffman asked me how my opinion was coming.  I assured him that I was researching the applicable case law and giving the issues a great deal of thought.  I stated quite clearly that I was deeply involved in pondering these important issues and that I wanted to write an opinion he would take pride in.

            I didn’t see any reason to rush to judgment.  I preferred to think through the issues and come up with a well-reasoned ruling.  Appellate court opinions are often not issued for many months after oral argument.

            But Hoffman’s obsession with speeding through his caseload triumphed over my desire to do a thoughtful and thorough job. 

            One morning I arrived in chambers and was abruptly informed by Hoffman’s secretary that the opinion was written and I no longer needed to do any work on it.  After catching my breath, I asked, “What happened? Did the judge write the ruling himself?”

            Of course not, I was assured.  He had hired someone to write his opinion for him.  Although the secretary didn’t reveal the name of the author, it was a professor at a local law school. 

            So, without telling me, Hoffman had turned the case over to a law school professor, whom he paid out of his own pocket.

            I was astounded.  If Hoffman had given me a deadline (say, “If you don’t write this by June 1st, I’ll have to take it out of your hands”), I would have finished writing an opinion by the deadline.  And it would have been as good as, or better than, whatever the law professor came up with.

            But I wasn’t given any deadline.  After I spent weeks doing difficult legal research and evaluating the merits of the competing issues, the case was yanked out of my grasp and turned over to someone else.

            I never checked to learn how the opinion fared.  Did the two other judges go along with it?  Did the parties appeal to the U.S. Supreme Court?  The truth is that, after the shock wore off, I really didn’t care what happened, so I never bothered to find out.

            Looking back, I probably should have realized that Hoffman desperately wanted to get the appellate case out of the way so he could get back to his everyday routine.  I had assumed that he could separate his appellate court role from his obsession with being in first place in the district court’s statistics.  While he waited for a well-reasoned opinion, he could have speeded through his trial-level caseload the same as always. But I was mistaken on that score.  He couldn’t separate the two roles. 

            In retrospect, maybe I could have proceeded differently.  Maybe I spent too much time going back and forth on the complex legal issues.  Maybe I should have set aside my trial-court responsibilities and focused exclusively on the appellate case.

            I could have simply sat myself down and written an opinion that favored one side or the other.  And been done with it. 

            But I still think that Hoffman was unforgivably wrong to do exactly what he did.

            As disillusioning as so much of my experience with him was, I view this entire episode as one of the worst examples of Hoffman’s high-handed behavior.