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A. Leon Higginbotham Jr. (1928-1998):
A Tribute
By Colin S. Diver

ON December 14, 1998, a fatal stroke finally silenced the booming, passionate, irrepressible voice of A. Leon Higginbotham Jr., Hon'75. Eminent jurist, lawyer, scholar, and statesman, Judge Higginbotham was truly a man of his time and a man of the world. Yet he was also a loyal son of Pennsylvania, his "adopted" university, which he served with distinction for over 30 years as a trustee, overseer of the law and education schools, teacher of sociology and law, and mentor, advisor, and friend to hundreds of students, faculty, and staff.
   Just two weeks before his death, Judge Higginbotham had appeared before the House Judiciary Committee, to express -- in typically direct terms -- his opinion that the offenses charged against President Clinton did not warrant his impeachment and removal from office. When a Republican committee member stated that "real Americans" felt otherwise, Judge Higginbotham slowly shifted his six-foot, five-inch frame, peered over his reading glasses, and intoned in that sonorous baritone voice: "Sir, my father was a laborer, my mother a domestic. I came up the hard way. Don't lecture to me about the real America."
   Leon Higginbotham never shied away from a fight. After Judge Clarence Thomas was appointed to fill Thurgood Marshall's seat on the United States Supreme Court in 1991, Judge Higginbotham wrote a sternly worded "Open Letter" to the new associate justice, which he published in the University of Pennsylvania Law Review. Though still sitting as Chief Judge of the United States Court of Appeals for the Third Circuit, Higginbotham candidly expressed his profound concern and sorrow that Justice Thomas would turn his back on a century of struggle.
   Years earlier, as a federal district judge, Higginbotham was assigned to hear a suit by black construction workers alleging racial discrimination in the Pennsylvania construction industry. The defendants petitioned that he should be disqualified to hear the case because of his race and outspoken views on race. In a magisterial opinion, Judge Higginbotham fired back: "To suggest that black judges be ... disqualified would be analogous to suggesting that the slave masters were right when ... they argued that only they, but not the slaves, could evaluate the harshness of the system."
   Judge Higginbotham often spoke of the experiences of racial prejudice and exclusion that had shaped his social vision. He recounted the struggle to escape the stifling confines of his Ewing Park neighborhood in Trenton. He told of his exclusion from the dormitories at Purdue University, the icy silence that greeted his arrival for a job interview at a prestigious Philadelphia law firm, the impossibility of renting office space in Center City Philadelphia.
   Following his graduation with honors from Yale Law School, Judge Higginbotham clerked for Justice Curtis Bok of the Philadelphia Court of Common Pleas and served for a year in the office of Philadelphia District Attorney Richardson Dilworth. With his law-school classmate Clifford Scott Green, Higginbotham formed a law practice, Norris, Green, Harris & Higginbotham, which specialized in serving the needs of Philadelphia's African American community. In 1962, President Kennedy appointed him to the Federal Trade Commission, and two years later President Johnson appointed him as United States District Judge for the Eastern District of Pennsylvania -- at 36, making him one of the youngest persons ever to be appointed to the federal bench. Fifteen years later, President Carter elevated him to the Court of Appeals. He sat as a judge on that Court until his retirement in 1993. During his service on the federal bench he authored more than 600 published opinions, many of them notable for their eloquence.
   Throughout most of that period, Judge Higginbotham maintained a killing schedule as teacher, scholar, lecturer, consultant, and advisor. Almost every year from 1970 to 1993, he taught courses in the sociology of race at the Penn sociology department and courses in race and the law at Penn's Law School. He also taught courses at other universities, including the law schools of Harvard, Michigan, NYU, Stanford, and Yale. Meanwhile, he produced a veritable torrent of scholarly writing on the history of race in America, including his critically acclaimed books, In the Matter of Color (1978) and Shades of Freedom (1996), and dozens of journal articles. Judge Higginbotham's voluminous scholarly output documents in painstaking -- and painful -- detail the legal structure that supported and protected the distinctively American system of slavery and apartheid. In the small, everyday details of that system of legal oppression, one can almost hear an echo of Hannah Arendt's famous epigram about the "banality of evil." Later in his life, Judge Higginbotham turned to documenting, in the legal substructure of South African apartheid, another terrible legacy of America's segregationist jurisprudence.
   At the time of his retirement from the bench, Judge Higginbotham and his second wife, Dr. Evelyn Brooks Higginbotham, Hon'92, were both teaching at Penn: he, as a senior fellow at the Law School, and she, as an associate professor in the history department, specializing in the history of the black Churches. Unfortunately, and in spite of a spirited campaign to keep them at Penn, they were lured away from their adopted hometown by offers to teach at Harvard University. In his latter years, Judge Higginbotham taught regularly at Harvard's Kennedy School, Law School, and College, while practicing law at the firm of Paul, Weiss, Rifkind, Wharton & Garrison. Despite heart problems and failing health, he maintained to the last the punishing pace that had characterized his entire professional life, advising heads of state and corporate boards, writing and lecturing prolifically, and lending his considerable stature to the resolution of society's most stubborn conflicts.
   Leon Higginbotham accumulated honors as magnets attract iron filings: the Presidential Medal of Freedom, the National Human Relations Award from the National Conference of Christians and Jews, the Lifetime Achievement Award from the Philadelphia Bar Association, Outstanding Young Man awards from the U.S. and Philadelphia Chambers of Commerce, honorary degrees from more than 60 universities (including Penn), and dozens of other accolades and tributes. Despite this incessant adulation, Leon Higginbotham wore celebrity lightly. The man who mingled easily with presidents and potentates always seemed more at home with receptionists, chauffeurs, and custodians. The ordinary people whose lives he touched most personally -- his family, his students, his law clerks, colleagues in the courthouses and academy -- were the source of his greatest pleasure. They will, in the end, be his proudest legacy.

Colin S. Diver is the Bernard G. Segal Professor of Law and dean of the University of Pennsylvania Law School.



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