Special Council Session On October 18 the Council held a special evening session in Philadelphia at which Memorial Minutes were read for three of its most distinguished members— Edward Hirsch Levi, Herbert Wechsler, and Charles Alan Wright, all of whom died in 2000. In addition, President Michael Traynor read a "Reminiscence" of all three that was especially written for the occasion by Patricia M. Wald, former Chief Judge of the United States Court of Appeals for the District of Columbia and former ALI Vice President. Judge Wald’s tribute and Gerhard Casper’s Minute in Memory of Edward Hirsch Levi follow. The other Minutes will appear in a subsequent issue of The ALI Reporter. A Personal Reminiscence Patricia M. Wald Mike Traynor has asked me to write a few words about what it meant over 30 years of my ALI membership to have known and worked with Herb Wechsler, Ed Levi, and Charlie Wright — all gone in the space of a few months. For me, being a continent away made those losses somehow sadder, as though that part of the Institute’s history was ebbing away without the comfort of ritual or eulogy. We are familiar with the cluster theory of life; at certain times and places in history great minds and spirits congregate, nourish and inspire one another; they create an environment in which important things happen; civilization advances.
Apart from their commonality as legal luminaries, the three were, of course, very different. While I did not know either Herb Wechsler or Ed Levi as long as I knew Charlie Wright, in unpredictable ways their lives intersected with mine and those of my generation of lawyers. They were all brilliant teachers and, though I was never one of their law school students, they taught me lessons in the law that were nowhere listed in the curricula of Columbia, Chicago, or the University of Texas Law Schools. In Ed Levi’s case, it was the legacy he left behind from his relatively short but immensely influential stint as the Ford Administration’s Attorney General in 1975-1977 that affected my own path most. In the aftermath of Watergate revelations and President Nixon’s resignation, the Department of Justice in 1974 was badly shaken and disillusioned. Senior career officials had already gone or were on the point of leaving, middle-level officials were disoriented, new recruits understandably inhibited. The genius of putting a figure of Ed Levi’s stature — the President of the University of Chicago and its former law-school dean, a man of impeccable character, a shrewd and uncompromising judge of character himself — at the head of a stricken Justice Department can hardly be overstated. Within months, the Department had regained its confidence, second- and third-tier positions had changed hands, a new stream of young idealists was coming aboard. When I entered the Department as an Assistant Attorney General in the Jimmy Carter Administration in early 1977, Ed Levi had left a legacy of a clean, smart, and reenergized department, about as unpartisan as any political entity can be in our form of government. For the entire time I was there, our Department leaders, including his successor as Attorney General, Griffin Bell, used Ed Levi and his policies and principles as the measure for what a Justice Department should be and do, of what was worthy and what was inappropriate. Ed taught us the lesson that there is no damage in government a real leader cannot fix if he is willing to risk his own career to do it and he is savvy, smart, and incorruptible. The lesson, I suspect, still holds today. I did not know Herb Wechsler before I joined the ALI in the early 70’s. He then seemed a formidable, even distant, person. On the dais at Council meetings with Ammi Cutter and Rod Perkins, he communicated authority, sound judgment, and no nonsense to all who ventured to speak. Only in the corridor conversations or before dinner conviviality did one glimpse the sweet, even shy, and unpretentious man of vision and intractable ideals. When Ruth Ginsburg, one of his protégées from Columbia Law School, and I came on to the Council in 1978, he went out of his way to welcome us and encourage our active participation. It took only a few Council meetings, though, to figure out his rules of the game: speak only when you have something substantive to say and say it succinctly and precisely, wait for Herb to rephrase it in the way you had originally meant to say it, and then watch it survive or perish on the merits. Herb was voracious and omniscient. As a neophyte judge I wrote a somewhat overblown opinion on tort liability, relying heavily on the ALI Restatement of Torts. This opinion went largely unnoticed. But at one ALI dinner, Herb came over to acknowledge it, speculate about it, and dissect it with the same meticulous care that law professors lavish on the opinions of the Supreme Court. I cannot tell you how many times thereafter, as I drafted opinions, I felt the shadow of Herb Wechsler over my typewriter (later my computer), or how many times I debated inside my head with Herb, defending what I wrote or, not infrequently, justly abandoning it under the withering scrutiny of my phantom critic. Ironically, serving during this past year on an international tribunal with few precedents to guide it, I have come to appreciate two of Herb’s greatest gifts. The first was his contribution to an enforceable international jurisprudence, a work still in progress. He was, you may remember, an adviser to the U.S. members of the International Military Tribunal at Nuremberg in 1945-1946. I don’t know the precise aspects of those ground-breaking proceedings he worked on, but I know he worked closely with Telford Taylor, the principal architect of international war crime law, of whom Herb wrote just last year: "If I was asked to name the person of my generation whom I most admired, I would promptly answer Telford Taylor.… [W] ise counselor, persuasive advocate, careful scholar, all the qualities that signify distinction ... were his in high degree." That generosity and modesty do not mask the importance of Herb Wechsler’s own contribution. More than 50 years later, at the International Criminal Tribunal for the former Yugoslavia, we recognize the annals of the Nuremberg trials as the building blocks of international humanitarian law. I find it quite amazing to think back now upon that small group of Americans — Herb, Telford Taylor, Robert Jackson, and their allies — building from scratch, only months after bombs had stopped falling, a new legal structure for holding heads of state and their high commands personally responsible for the horrendous list of wartime atrocities visited upon innocent civilians. Herb, of course, also gained renown for his decades of long work as the principal draftsman and Chief Reporter on the Model Penal Code, a breathtaking leap into order and reason for a body of criminal law that like Topsy had "just grow’d." As it sadly turned out, the Code was just too much for lawmakers to swallow in one piece, but its influence has been pervasive. At my Tribunal we use it as a steady source for grappling with fundamental concepts in new settings, like defining the difference between general intent and the specific intent required for the crime of genocide and the scope of command responsibility. We cite it frequently in our judgments; it has become a keystone of international criminal law. I like to think Herb would have enjoyed the linkage of these two parts of his far-flung career. All knowledge is indivisible, Herb Wechsler’s life proclaims. Charles Alan Wright and I worked closely from the time of his ascension to leadership in the ALI and indeed, we had known each other much earlier. I recall once, in law school, going on a triple date with Charlie who — law-journal editor, towering academic — thoroughly intimidated a small-town girl. During the next several decades Charlie’s and my paths crossed only infrequently; through our alma mater I kept abreast of his rise to the heights of scholarship as an expert on federal jurisdiction and procedure. I followed his difficult sojourn as President Nixon’s counsel before the Supreme Court, and admired from afar his courageous and sage advice to his client on when to accede to the rule of law. It was not, however, until I came to Council that I experienced the full power of Charlie’s presence and authority. No one wielded the gavel quite like Charlie; nobody silenced the supercilious more deftly. He listened respectfully — but only so long — to the outlier. Charlie fastened onto the jugular and never let go until the beast was vanquished. The challenges (and occasional acrimony) that marked his tenure as First Vice President and President during the 80’s and 90’s — Corporate Governance, The Law Governing Lawyers, the Restatement of Torts on Products Liability, Family Law, the Uniform Commercial Code — nourished his deep devotion to the Institute and its place in the pantheon of legal institutions. Charlie of course knew that the "devil was in the details," and when I served as First Vice President I grew to expect the daily fax from Austin: speakers had to be on line in June for the following May, Council nominations researched to a "T," schedules and menus approved months in advance. Charlie expected that ALI members would work tirelessly for no remuneration, but he believed that they had a right to expect choice cuisine, fine wines, and nicely appointed surroundings in line with their awesome responsibilities. He was a performer, but he demanded a well-built theatre with good acoustics and an attentive audience and he got it. At Annual Meetings his panache was a drawing card all its own for Institute members. Despite his solid Republican credentials, Charlie was a "small d" democrat at heart. He was adamant about outreach for more women and minorities. Excellence was not to be compromised but he knew they were out there waiting to be recruited and identified. During my time on the Council the number of women multiplied by 700 per cent; African-Americans and Hispanics climbed as well. He knew those ALI statistics by heart — how many Yale and Harvard and University of Montana graduates there were, how old every Council member was, what percentage were judges, teachers, big-firm practitioners, solo and government officials; the ALI could not lead if it did not engage all segments of the profession. Charlie could never be accused of being trendy, but neither did he ever lose sight of where the profession and the country were headed. Charlie was also, for sure, a Renaissance man. He argued and won Supreme Court cases, authored seminal works on federal procedure and jurisdiction, escorted several generations of young lawyers into the profession, spearheaded the necessary mid-course corrections to keep a paragon legal think tank alive, progressive, and well. Above all I remember Charlie as a good and loyal friend. He gave wise counsel, and he offered help unstintingly when it counted. We shared a love of well-crafted mystery stories, which he periodically reviewed and sent along to me. (He managed to catch many of the authors in gaffes on legal procedure and one of them on the images in the stained-glass windows at Yale Law School). I would be remiss too if, finally, I did not mention the sparkle, intellect, and camaraderie that the wives of these three men brought to our ALI fellowship. Ed, Herb, and Charlie were proud and devoted family men. They and their spouses were couples in the truest meaning of the word. We thought of them in pairs, Ed and Kate, Herb and Doris, and Charlie and Custis. In that sense, their personal and public lives were seamless; the same fidelity and consideration permeated the whole. I was privileged in my lifetime to have known them all. I am proud to honor them here. |