“Commanding.” “A giant.” “Bigger than the Coke machine in the student lounge.”
Over the course of his career, friends and admirers of A. Leon Higginbotham would describe his stature in almost mythic terms, like he was the John Henry of the legal world. “A giant in ability, a giant in diligence, a giant in integrity, and a super-giant in eloquence,” wrote Supreme Court lawyer John P. Frank, remarking on Higginbotham upon his retirement from the federal bench and as a Penn law instructor in 1993.
Standing at 6 feet 5 inches tall, Higginbotham had the booming voice and broad shoulders to go with immense intellectualism. He was a trusted advisor for U.S. President Lyndon B. Johnson and South Africa’s Nelson Mandela; a legal scholar and trustee at the University of Pennsylvania; a recipient of more than 70 honorary degrees; and a civil rights pioneer who spurred human rights forward through decades of public service. And yet, remarkably, there’s hardly a nod to his greatness on public display.
Next week, that will finally change. A mural in Higginbotham’s honor — created through a partnership between The Philadelphia Citizen, Penn Carey Law School, and Mural Arts Philadelphia — will be officially unveiled on November 2. But who is this titan of titans?
As numerous legal scholars have noted, Higginbotham would be a household name today if not for a few votes cast for Ronald Reagan in the 1980s. (Okay, a few million votes, but still.) “Had President Carter — who appointed Leon Higginbotham to the Third Circuit — been reelected in 1980, or had Walter Mondale won in 1984 or [Michael Dukakis] in 1988, it is a fair surmise that Leon would by now be on the Supreme Court,” wrote renowned federal judge Louis Pollak in 1993. Pollak served for decades on the United States District Court for the Eastern District of Pennsylvania. “That is where he has long belonged.”
While the archetype of a judge is some kind of authority who’s set apart from society, occupying rarified air, Higginbotham was a throwback, unafraid to speak his mind, even at his own political risk. That was true in 1992, when a surgical rebuke of then-nominee to the Supreme Court Clarence Thomas was published — a letter from Higginbotham, a sitting member of the federal bench, which was replete with 85 footnotes and raised questions about whether or not he was fit to fill Thurgood Marshall’s seat — and quickly stirred national headlines.
“He had some hesitancy [to publish it],” recalls his younger cousin (“nephew” in their terms) Michael Higginbotham, who doubled as one of the judge’s legal proteges. “That it may be perceived as outside of the bounds of judicial propriety. But he felt that it would be important for public debate.”
Willing to ruffle feathers for a greater good, Higginbotham was known privately for trademark kindness: a man who was exceedingly thoughtful in how he spent his time and possessing a will to go above and beyond in order to make his colleagues, clients, students, and at times, even his opponents, feel comfortable around him. He was possessive of a mean tennis serve, too, according to many.
“As a student, if I went to meet with him, I was shaking in my boots,” says Stephanie Franklin-Suber, the former City Solicitor and a student-turned-clerk for Higginbotham in the 80s. “I think on a certain level, he was self-conscious about it … [Because] he was kind. He was compassionate. And he even made an effort to speak to you in kind of a normal tone of voice.” Franklin-Suber adds, “Aside from my parents, he was, is, and always will be the person who has had the greatest influence on my life. Without him, I would be wealthy, but lost.”
On December 14, 1998, A. Leon Higginbotham passed away at the age of 70 after a stroke. Less than two weeks earlier, he was testifying in front of the House of Representatives after Republicans brought perjury charges against Bill Clinton. (Higginbotham argued Clinton’s actions did not constitute perjury.)
Out of the outstanding number of tributes and eulogies written about the man, just as many of them invoked his physical stature as his lighter side — a “delightful giggle,” tenderness, and his propensity for self-deprecation. Despite the near-miss on the Supreme Court, despite the accolades, and despite the John-Henry-esque legend of tireless labors, Judge Higginbotham was full of humanity right until the very end. He changed the social fabric of America but never forgot his roots.
Part One: The Early Years
“Sir, my father was a laborer, my mother a domestic. I came up the hard way. Don’t lecture me about the real America.”
– A. Leon Higginbotham to Representative Robert Barr (R-GA) during his final public appearance in 1998, during the impeachment hearings of Bill Clinton
Aloyisus Leon Higginbotham Jr. was born in Trenton, New Jersey, in 1928. The unique spelling of his first name was the result of how his father’s was spelled on his own birth certificate.
Michael Fitts (president of Tulane University, former Higghinbotham law clerk): I never asked him who he thought shaped him. But his mother was apparently an incredible woman, and I think [she] was sort of the lodestar for him.
John P. Frank (Supreme Court lawyer, writing for the Penn Law Review): Abraham Lincoln’s “angel mother” phrase accurately conveys the spirit of the Judge toward his own mother. She was a domestic servant in the Trenton area, had a seventh-grade education, and great determination for her children.
A. Leon Higginbotham (The Dream with Its Back Against the Wall speech, Yale 1990) She was a woman who disregarded the probability curve. For if she had paid attention to it, I would have ended up working at the C. V. Hill factory in Trenton, as my father did.
A. Leon Higginbotham (as told to Aaron Porter for his dissertation): I was an only child. To the degree that they could, they gave me everything. From the people my mother worked for, when she would hear that their children were going to some museum, she’d see to it that I’d go — even if she didn’t know the different types of dinosaurs.
“We used to call the post office our graduate school because there were so many Blacks who worked in the post office who had not only bachelor’s degrees, but advanced degrees — but couldn’t get a job in their field,” says Bill Brown.
John P. Frank: His father pushed and hauled and did the other chores there for 45 years, as had his own father before him. The Judge was ticketed for the same life.
A. Leon Higginbotham (The Dream, Yale 1990): All the White children were bussed to marvelous schools, which, unlike our school, had libraries, cafeterias, gymnasiums, language teachers, science teachers. But we went to a four-room schoolhouse, where each teacher taught three grades. We did not have the superior curriculum available for all of the other students in the township: no foreign languages, no science, no hard academic options.
John P. Frank: As a 13- and 14-year-old, the Judge worked as a busboy in a hotel and as a wheelbarrow-pusher at a pottery factory. His mother wanted more for him. She wanted Leon to work in an office and wear a white shirt with a tie.
A. Leon Higginbotham (appearing on Fresh Air in 1997): You had to have second-year Latin to enter the academic program at what was then Lincoln Junior High School, an all-Black school. But since [my school] didn’t have Latin, it would mean I would have to go in the industrial program. But my mother went to see the principal … [Soon] I entered the academic program, starting with second year Latin, not having the first year.
John P. Frank: In 40 years, no one from the Judge’s grade school had gotten into the academic program because the steering device was Latin.
A. Leon Higginbotham (Fresh Air, 1997): My mother was the most inspiring person that I’d ever known.
Louis Pollak (writing for the Penn Law Review): The key to understanding Leon is his singleness of purpose — a singleness of purpose directly responsive to injustice visited upon Leon when he was 16 years old.
After graduating from high school, Higginbotham enrolled at Purdue University as a 16-year-old. He challenged the university’s president over racist conditions he and other students faced.
A. Leon Higginbotham (The Dream, 1990): The 12 Black students lived at a house that they had the temerity to call International House. We slept in an attic with no heat. And after December and January, going to bed every night with earmuffs on, sometimes wearing shoes, other times three or four pairs of socks, jackets, I decided that I should go and talk to the university president.
John Norberg (Purdue historian): [Elliott’s] office was always open to students. Elliott had met Higginbotham previously. Higginbotham and another student protested that the Union barbershop would not cut the hair of African American students. Elliott told them he would buy clippers to be kept in the barbershop so they could cut each other’s hair.
Alexandra Cornelius (from “Evolution of the Black Presence at Purdue University”): Between 1940 and 1951, African Americans began attending Purdue in increasing numbers. West Lafayette restaurants did not admit African Americans. Blacks were only allowed to eat in the Union Building or the cafeteria during lunch time.
A. Leon Higginbotham (from his first book, In the Matter of Color): Why was it, I asked him, that Blacks — and Blacks alone — had been subjected to this special ignominy?
A. Leon Higginbotham (‘The Dream,’ 1990): But he looked me in the eye, and he said, “Higginbotham, the law doesn’t require us to let colored students in the dorm, we will never do it, and you either accept things as they are or leave the university immediately.”
Louis Pollak: Rather than truckle to the plantation mentality that infected that school, Leon quit engineering and set his sights on law.
A. Leon Higginbotham (as told to the Legal Intelligencer in 1995): I knew then I had been touched in a way I had never been touched before, and that one day I would have to return to the most disturbing element in this incident: how a legal system that proclaims “equal justice for all” could simultaneously deny even a semblance of dignity to a 16-year-old boy who had committed no wrong.
A. Leon Higginbotham (‘The Dream,’ 1990): That very night, hundreds of Black soldiers would run the risk of being injured in some far-off battlefields to make the world safe for democracy [in World War II]. And yet, the legal system that proclaimed equal justice for all would not give any semblance of dignity to a 16-year-old boy who had committed no wrong. I felt that I could not go into engineering, that I had to try to challenge the system.
Louis Pollak: It would be fair to say that America has for decades been the third-party beneficiary of the bigotry of the [Purdue] president … [towards] a freshman in 1944.
Part Two: The Making of a Lawyer
“I went to law school for one reason, and that was that the law was a powerful instrument, and I felt that justice could overcome anything.”
– A. Leon Higginbotham
In 1945, Higginbotham transferred to Antioch College in Ohio — joining Coretta Scott (later, King) as one of only three Black students in the class — where he studied sociology, before enrolling at Yale Law School. There, he won a national prize for the Inter-Law School Moot Court competition, representing Yale, after squaring off (and losing) to a Temple Law team led by Clifford Scott Green, another future judge. Months before graduating and testing the bar, he met with a Yale Law alumni representative in Philadelphia …
A. Leon Higginbotham (‘The Dream,’ 1990): I went to visit him during Christmas break in 1951. I did all the things my mother told me: My shoes were polished, fingernails very clean, hair combed, suit pressed.
A. Leon Higginbotham (Fresh Air, 1997): He did not know [I was Black].
A. Leon Higginbotham (‘The Dream,’ 1990): I walked into his office in the Girard Trust Building and said, “I’m Leon Higginbotham.”
The secretary said, “Well, are you A. Leon Higginbotham, Jr.?”
I said, “Yes.”
“I mean A. Leon Higginbotham, Jr. from Yale Law School.”
And I said, “Yes.”
A. Leon Higginbotham (Fresh Air, 1997): He didn’t even ask me to sit down — he left me standing in front of his desk and said, “Well, Higginbotham, there’s nothing I can do, but I can give you the name of two Black lawyers.”
A. Leon Higginbotham (‘The Dream,’ 1990): I went down the elevator in the Girard Trust Building, and I cried. I mean it. I cried because I thought of my mother. I thought of all the dishes she had washed, all the floors she had scrubbed, all the pain she had suffered. And after seven years, I couldn’t get a job.
Bill Brown (legendary Philly lawyer, former head of the EEOC and colleague of Higginbotham): At that time, we used to call the post office our graduate school because there were so many Blacks who worked in the post office who had not only bachelor’s degrees, but advanced degrees — but couldn’t get a job in their field.
Theodore Hershberg (writing in his book, Philadelphia: Work. Space. Family, and Group Experience in the Nineteenth Century): Although 80 percent of Blacks in the city lived within one mile of 5,000 industry jobs, less than 13 percent of Blacks found gainful employment in manufacturing. Blacks as best they could, concentrating as they had … [got jobs] in menial, domestic, and unskilled low paying occupations.
Stephanie Franklin-Suber: They were all subjected to the same barriers — Leon Higginbotham, Judge Clifford Scott Green, Bill Brown — they could not get the positions in the large law firms when they came out of law school. They had to go and do other things to prove themselves — to prove that they were better, just to get equal treatment.
Bill Brown: In those days, you couldn’t go into the restaurants [in Philadelphia]. The only restaurant you could go into was Horn & Hardart’s. And you could only go there because it was self-serve. It had a whole series of things behind glass doors; you could put your money in, and swing it around, whatever you were buying around, and take it out. So that was the only place we could eat.
A. Leon Higginbotham (‘The Dream,’ 1990): I got [a job], ultimately … a clerkship with Justice Curtis Bok of the Pennsylvania Supreme Court [at the time, Judge of the Court of Common Pleas]… I came to Philadelphia after the clerkship.
Bill Brown: Oh, the Philadelphia area was completely segregated. For a long time, in fact, the Black real estate agents couldn’t call themselves realtors. They were not allowed to join the white real estate groups. They had to call themselves “realtists.”
… Pennsylvania was no different in terms of race relations than Philadelphia, Mississippi.
Part Three: The Famed Norris Schmidt Firm
“We were the 20th century miracle. There was just no firm in the country that had moved the way we had.”
– A. Leon Higginbotham, as told to Aaron Porter for his dissertation
Faced with the era’s racism and segregation within the legal industry, Higginbotham, 25, joined the groundbreaking law firm that came to be known as Norris Schmidt Green Harris Higginbotham & Brown. The firm, often called “Philadelphia’s First African-American Firm,” produced an inordinate number of judges, politicians, and famed lawyers, including Doris Mae Harris (a woman as a named partner was an anomaly at that time), Bill Brown, Clifford Scott Green, Harvey Schmidt, and Hardy Williams. A large group of the lawyers met through connections working at the post office during law school and afterwards, due to exclusion from White firms. In 1947, the firm moved from a rental unit inside the Black lawyers association to the Frank Furness-designed Commercial Trust Building, right across from City Hall.
Bill Brown: You had no chance of getting to the White firm, none whatsoever. And it was years and years before the White firms opened up.
Harvey Schmidt (founding member of the firm, as told to Aaron Porter) on finding an office: The [Whites] would say ‘Oh, we just rented that this morning, you are just too late. You would see the same ad in the same paper the next day and the next week. That happened several times, and we were forced to rent at 12th and Spruce from the Oddfellows, a Black fraternal organization.
Bill Brown: We practiced there for quite a number of years in a house that was converted to offices. And when we moved to the Commercial Trust building, we were the first Black firm to have offices in a major downtown office building … I think that’s where the Marriott Hotel is now.
Bill Brown: We worked almost seven days a week to make ends meet. It was a struggle financially for a young, Black firm to start up. And so we worked a lot and a lot of times, frankly, who got paid after the secretaries got paid was dependent upon whose mortgage was due.
Harvey Schmidt (as told to Aaron Porter): I went on to Berlitz night school on my G.I. Bill, and took Spanish. As a result, we developed a large Spanish clientele, and that was before there were any Spanish lawyers in the city to my knowledge.
A. Leon Higginbotham (as told to Aaron Porter): Harvey deserves an awful lot of credit because, but for Harvey owning the building, Harvey’s willingness to share the volume of business he had, there is no way in the world I could have generated any business of my own which paid … Harvey was in everything. He was a Mason, an Elk, a Democrat. He was running for office; he was heading up the Democratic Committeemen.
Bill Brown: When it came to a large civil case, the Black clients would invariably go to White firms, because they felt that the White lawyers would get them a better result before what generally was mostly White juries.
Harvey Schmidt (as told to Aaron Porter): There were no Black judges at all in the state courts and, of course, the federal [court there was one, William Henry Hastie]. There was one magistrate in the entire city and that was Ed Henry. There was one [Black] Common Pleas Court judge in the entire state, and he was in Pittsburgh.
Bill Brown: We had to build a reputation because nobody knew us and the Whites abstained from us, along with the insurance companies. Who are these upstarts? And they’re Black lawyers on top of it? But we were a different breed of Black lawyers than what they were used to dealing with.
A. Leon Higginbotham (as told to Aaron Porter): I think that what some people in the White legal profession were getting fearful of was that we were intruding in areas where they had for many years been in the personal injury practice. We were going to Black churches, active in Black political movements, the NAACP. There was an increasing consciousness, starting in the 1950s [of race representation].
“White litigants are now going to have to accept the new day where the judiciary will not be entirely White. Black judges should not be required to disparage Blacks in order to placate Whites who would otherwise be fearful of our impartiality,” wrote Higginbotham.
Bill Brown: The history in those days was that Black lawyers, traditionally, were known not to take cases to trial. And so the settlements with Black lawyers were much lower than what the value of the case might be … So it got to the point after a number of years, the major insurance companies knew if you got a case against the Norris firm, you better make a reasonable offer. Because if you didn’t, you would then go to trial with them, and they were damn good at trying cases.
Clifford Scott Green (as told to Aaron Porter): I don’t think that there has ever been a better trial lawyer in the City of Philadelphia than Leon Higginbotham, just absolutely superb as a trial lawyer, could try anything, criminal, civil, didn’t matter, just absolutely superb.
Hardy Williams (a former law associate, as told to Aaron Porter): Leon and his trial steps, the man was like a giant — fool you every day, a Houdini.
Bill Brown: I don’t know whether we focused so much on making history, [but] we knew that we were breaking down barriers, there’s no question about that … you were just sort of dedicated to trying to make it from one day to the next. As we look back on it, it’s clear that we were unique, and it’s clear that the advances we made were, I think, historic, not just for Philadelphia, but indeed for the country.
Part Four: A President Calls
“I knew there was an indisputable nexus between the dark shadow of repression under which, historically, most American Blacks have lived and the rioting occurring within 10 blocks of the White House. Why, I thought to myself, in the land of the free and the home of the brave, had even brave Blacks so often failed to get free?”
– A. Leon Higginbotham from In The Matter of Color
After a trailblazing early career in private practice, Higginbotham spent the next two decades serving in a variety of high-profile positions at the local, state, and federal level: In 1962, he was appointed to the Federal Trade Commission; in 1963, nominated to the federal bench by JFK; in 1968, following the death of RFK, appointed to the Kerner Commission to curtail urban violence. A few years before being appointed to the federal court of appeals by President Carter, Higginbotham delivered perhaps his most famous judicial opinion in the case of Comm. of Pa. v. Local 542, Int’l Union of Operating Engineers.
Bill Brown: My oldest daughter and his daughter decided they wanted to go on a camping trip, and we all went up to Maine. One morning a police officer came up and said, you know, Mr. Higginbotham, he said, you’ve got a call from the president.
A. Leon Higginbotham (as told to the Lyndon Baines Johnson Library): Well, I was playing tennis, and when I got home someone said I had gotten a call from the White House. It was again vague.
Michael Higginbotham: Sometimes they had to make decisions really quickly, so he had to let the FBI or The Secret Service know where he was at all times, [Higginbotham also served on the Foreign Intelligence Surveillance Court]. They might need to get him for a 24-hour notice when they had to approve a wiretap.
A. Leon Higginbotham (as told to the Lyndon Baines Johnson Library): I was speaking at an Urban League Meeting … sort of giving them a talk to motivate the importance of the work. We got word that [Martin Luther King] had been shot, and we terminated the meeting.
… It must have been 1 [o’clock] in the morning, or 2, maybe even 3 … [when I got a call] asking me if I could be in the White House the next morning at about 9 or 10. So I caught the earliest train there.
“As a 13- and 14-year-old, the Judge worked as a busboy in a hotel and as a wheelbarrow-pusher at a pottery factory,” says John P. Frank. “His mother wanted more for him. She wanted Leon to work in an office and wear a white shirt with a tie.”
Peggy Reavey (as told to The New York Times): I was working behind the counter at the Philadelphia Museum of Art bookstore. I called my husband, and we both felt despair that Dr. King was gone. All of the guards at the museum were Black. Their faces were ashen and their averted eyes said, You don’t know what this is for us. I believe I was afraid of the rage they must have felt.
A. Leon Higginbotham (as told to the LBJ Library): We spent a substantial period of time during that night trying to put King’s death in perspective … One of the critical issues was what can a president do with this holocaust to try to bring some order to the nation immediately, but most important, to try to give individuals hope so that they would recognize that violence and polarization were counterproductive. We talked quite late in the night, and I stayed overnight at the White House.
Martha Asbury Wilson (as told to The Times): I was a freshman and in the Phi Mu sorority suite at Memphis State when I heard it on the radio. Some girls walked into the room talking and laughing about it. I remember cars honking and a general feeling of celebration around me. I felt bad but was too stupid and gutless to speak up.
A. Leon Higginbotham (as told to the LBJ Library): I thought, and so did Bayard [Rustin, nonviolent organizer of the March on Washington] that the most important aspect, whatever [the president] did and whatever the government did, was to convey to the weak and the poor and the deprived and the Black some absolute conviction that within their lifetime and within shorter periods than that the problems would be solved. But the aspect of why individuals were rioting in Washington or Newark or Watts cannot be pigeonholed in terms of why a certain bill was not passed in 1960 rather than 1964. And I really felt that President Johnson recognized this concept.
Stephanie Franklin-Suber: Despite the exhaustive analysis and legal research he did, he believed, still, that it was possible for there to be change. It was possible for the ideal to become the reality, the ideal of equal justice to become the reality, but that required commitment, and action.
A. Leon Higgonbotham (writing in the Introduction to his first book, In The Matter of Color): What were the options that ought to have been exercised years ago, even centuries ago, to narrow those disparities in meted-out justice that had periodically — and had now once more — kindled Black hatred and White fear?
In 1971, Higginbotham began his involvement in a famous case, Commonwealth of Pennsylvania v. Local 542, (International Union of Operating Engineers). The case revolved around 12 Black plaintiffs accusing the union of racial discrimination. When the defendant pushed to get Judge Higginbotham removed from the case, on account of his race, he refused, and remained on the case for years.
Michael Higginbotham: This case was a civil rights employment action brought by Black construction workers against the construction industry. The defendants moved for Judge Higginbotham to recuse himself because of comments the judge made.
Charisse Lillie (former City Solicitor and Higginbotham research assistant): The defendants filed a motion to recuse him from hearing this case, alleging racial discrimination, saying that basically, he was biased because of the nature of this research.
Michael Higginbotham: [It was] because he was Black.
Charisse Lillie: And so the judge wrote this incredible opinion.
A. Leon Higginbotham (from his opinion in Local 542 case): I concede that I am Black. I do not apologize for that obvious fact. I take rational pride in my heritage, just like other ethnics take pride in theirs. However, that one is Black does not mean, ipso facto, that he is anti-White; no more than being Jewish implies being anti-Catholic, or being Catholic implies being anti-Protestant.
William Brennan (former Supreme Court Justice, writing in a tribute to Higginbotham): There is much that is special about Judge Higginbotham’s opinions: their exposition is clear — often eloquent — their tone is measured, their legal analysis is meticulous and thorough. The thoroughness bespeaks several admirable qualities: a mastery of doctrine, an awareness of subtleties, a belief in law’s capacity to resolve problems, and a desire to place legal results in context.
A. Leon Higginbotham (from his opinion in Local 542 case): White litigants are now going to have to accept the new day where the judiciary will not be entirely White … Black judges should not be required to disparage Blacks in order to placate Whites who would otherwise be fearful of our impartiality.
Part Five : From Civil Rights to Apartheid
“Two years ago in Pretoria, on a bright, sunny day, I witnessed a miraculous transition of power. Former President F.W. deKlerk became the Executive Deputy President, and the African National Congress leader, Nelson Rolihlahla Mandela, became the president of the Republic of South Africa.”
– Higginbotham, writing in Shades of Freedom
In 1978, Higginbotham published his first book, In The Matter of Color. Over the course of the next 15 years, he made six trips to South Africa, working with Black lawyers to fight apartheid. While Nelson Mandela was imprisoned, and following his release, Higginbotham was hand-picked to advise on the development of the country’s new constitution and the Free Election Fund, which raised millions of dollars for supporting future, fair elections.
Michael Higginbotham: I’m at Cambridge. And I get a call from Leon. And he basically says, “How would you like to go to South Africa?” And I say, “Fine, I’m happy to do it. I got exams, you know, in two months. So as soon as I finish exams, I’d be happy to go.” He says, “No, would you like to go in two weeks?”
A. Leon Higginbotham (writing in a law article from 1993): Whether one studies the United States or South Africa, it soon becomes evident that any nation that seeks to structure a fair, pluralistic judicial system must do more than merely remove the vestiges of past racism in order to establish the best values and qualities of an effective judicial system.
Michael Higginbotham: In 1982, he was invited to speak in South Africa by the Black Lawyers Association. And there was a fellow who was the president of the Black Lawyers Association of South Africa named Godfrey Pitje. And he actually worked at the law firm of Mandela and Tambo [Nelson Mandela and Oliver Tambo], two famous South African freedom fighters.
… This was during that time where Reagan had this Constructive Engagement [strategy], where we would work constructively with South Africa, and say, “We don’t like apartheid but we’re going to support you because you’re anti-communist.” And so there was some sense that maybe [South African government officials] invited the American delegation to give them some advice on changes that they were going to do … But instead, you know, they kind of doubled down.
Michael Higginbotham: They go over, and they basically get locked up by the South African government. And it’s kind of international news.
Charles Ogletree (Harvard Law professor, in his article From Pretoria to Philadelphia): Despite his many duties … as a federal judge, scholar, and educator, Judge Higginbotham was at the forefront of American opposition to apartheid.
Michael Higginbotham: They’re released pretty quickly. P. W. Botha was the president, and he was head of the National Party and a very big supporter of apartheid. So the National Party asked the American delegation to come and to allow some MPs, members of Parliament, to present the government’s position. They presented, and they were very, very hostile to Leon. And very supportive of racial separation. And so they, they basically gave a 20-minute presentation on why, you know, apartheid is fine.
After they finished presenting, all the delegation looked at Leon to respond. The response, I can tell you, is classic Leon — powerful stuff.
“He was speaking for people who were not represented, who were unfairly treated, who were underrepresented, who had no one else speaking for them. And he took on that responsibility because he felt that others that had gone before him had done that for him,” says Stephanie Franklin-Stuber.
Michael Higginbotham (writing in a law article): Leon then discussed the infamous atrocities that human beings had committed against one another over the years and how the perpetrators of such oppression had been judged in the corridors of history. He talked about how wrong would not go unpunished much longer. In conclusion Leon quoted the character Shylock from William Shakespeare’s Merchant of Venice.
Michael Higginbotham: And he says, “The wrong that you do to me today, like Shylock said, I will avenge it. But it will be twice as hard on you tomorrow.” So then he sat down. And one by one, everyone in the American delegation stood up, and they said, I agree with Leon. And then they walked out very, you know, orderly and peacefully. But that was some of the most powerful stuff I’ve ever seen in my life.
Nelson Mandela (from his defense in the Rivonia Trial, 1963): I have fought against White domination, and I have fought against Black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and achieve. But if needs be, it is an ideal for which I am prepared to die.
Michael Higginbotham: I’ve never seen somebody able to kind of convince people of, you know, the rightness of his position, even when they disagreed with him. And I think that’s why Mandela had so much respect for Leon. Look at his life and look at what he stood for, and look at what he did. I think he saw a lot of Leon in him. I think that’s why, when he gets out [of prison], one of the people that he reaches out to is Leon.
Mandela (from letter to Higginbotham family, 1998): Judge Higginbotham played an important role in [South Africa’s] first democratic elections, supported the development of public interest law work in South Africa, and helped to create broader opportunities for Black South African lawyers.
A. Leon Higginbotham (writing in his second book, Shades of Freedom): Many barriers in the United States and even more in South Africa must be overcome. Nevertheless, the South African experience boosts my spirits. I keep my fervent belief in the possibility of substantial equality and significant equity in the United States, despite the conservative winds that sometimes delay the journey.
Part Six: No Rest for a Mentor
“I wonder whether (and how far) the majority of the Supreme Court will continue to retreat from protecting the rights of the poor, women, the disadvantaged, minorities, and the powerless. And if, tragically, a majority of the Supreme Court continues to retreat, whether you, Justice Thomas, an African American, will be part of that majority.”
– Higginbotham in An Open Letter to Clarence Thomas
Amid his other contributions to human rights on a national and international scale, Higginbotham was a dedicated teacher, mentor, and scholar — holding positions at Penn Law, Harvard Law, and the John F. Kennedy School of Government. He took hundreds of lawyers, particularly young, Black lawyers, under his wing to advance diversity in the profession.
Ronald Noble (former secretary general of Interpol, writing in 1993): There is not a human being I am aware of who was ever turned away from the chambers of the Honorable A. Leon Higginbotham, Jr. of the United States Court of Appeals for the Third Circuit.
Bernard Wolfman (former Penn Law School Dean, writing for the Penn Law Review in 1993): Leon the teacher attracts students year after year. By his teaching and by the life he has led as teacher, scholar, and judge he inspires them. His creativity is for all to see in his writing, but it is also reflected in the ongoing work of the generation of lawyers he taught at Penn.
Edward Becker (former federal judge, in 1993): No judge, I might add, has ever had a more devoted cadre of law clerks and interns than Leon Higginbotham. They worked countless weekends, and some stayed on many weeks after their tour of duty was up, because of their reverence for this man.
Stephanie Franklin-Suber: We’re talking about the 1980s. I was at Penn Law School at a time when all of the Black students received anonymous letters saying that we were all on scholarship, that we were not qualified, and that we should go back to Africa. [Higginbotham] always had a close connection with the Black Student Union. Mentor is not an adequate term to describe the impact that he had on the trajectory of my career and my life.
“He deliberately chose not to see himself as a prototypical individual American success story,” says Neil L. Rudenstein. “He always assumed that if it had not been for the major contributions and acts of kindness of untold others, he would not have been able to achieve all that he did.”
Michael Fitts (Tulane University president): What I remember most was inclusiveness, his vision, his optimism in the face of incredible issues across the board. In many respects, he was ahead of his time in terms of DEI [Diversity, Equity, and Inclusion]. He had a very clear vision about diversity and the value to institutions and people.
Stephanie Franklin-Suber: During my third year of law school, my mother died of cancer in October of 1981. I remember that in October and November, I was struggling to complete my exams and final papers for that semester, including my paper for Judge Higginbotham’s course …
Shortly afterward, in early December 1981, I thought that I was having an asthma attack and went to Penn Student Health. I was immediately hospitalized with a blood clot on my lung. Then, I had an allergic reaction to the blood thinner used and I began to hemorrhage. I needed a blood transfusion. I was near death. I was in intensive care. My family was gathered around. A nurse brought the phone to my bed saying that it was Judge Higginbotham calling. It was like a scene from a movie. He offered me a two year position after graduation as his research associate for a year and then as his law clerk the following year. I started crying.
Charisse Lillie: I’m telling you, when I used to meet him [at his chambers] at 7:30 [am], he had already been there, you know, an hour or so. He was already leaning over his desk. He was really working around the clock.
Edward Becker: His weekend work schedule is legendary. Winging in from a lecture in South Africa or a graduation address in the Midwest, he would prepare dozens of difficult cases for argument in sleepless weekend marathons, and yet come in on Monday morning, fresh as a daisy, with a knowledge of the briefs and the record that would knock counsels’ socks off.
Stephanie Franklin-Suber: As I look back on it, it was a concerted effort. [Blacks] did not have these opportunities. And so he was going to create opportunity, to create a pipeline. Because the perception of Black lawyers, it was almost like, I don’t know if you’re a football fan, but the perception of Black quarterbacks at the time.
Part Seven: No slow decline
“I kept asking myself: Will the Real Clarence Thomas Stand Up?”
– Higginbotham in An Open Letter to Clarence Thomas
The election of George H. W. Bush closed Higginbotham’s path to the Supreme Court. Instead, in 1991, Clarence Thomas was appointed. In 1992, Higginbotham wrote An Open Letter to Clarence Thomas. Originally published in the Penn Law Review, the article quickly went viral (for those days) getting picked up and written about in newspapers around the country.
Michael Higginbotham: It was probably the most famous thing he’s ever done.
Stephanie Franklin-Suber: He was speaking for people who were not represented, who were unfairly treated, who were underrepresented, who had no one else speaking for them. And he took on that responsibility because he felt that others that had gone before him had done that for him.
Michael Fitts: There are people who spend their lives wanting to go on the Supreme Court. And there’s probably nobody who didn’t make it on the Supreme Court who was, in many respects, as close as Higginbotham was. But it didn’t eat at him. It did not consume him in any way, shape, or form.
A. Leon Higginbotham (from Open Letter): By nominating you to the Supreme Court, President Bush has suddenly vested in you the option to preserve or dilute the gains this country has made in the struggle for equality.
“Judge Higginbotham’s work and the example he set made a critical contribution to the course of the rule of law in the U.S. and a difference in the lives of African Americans, and indeed the lives of all Americans,” wrote Nelson Mandela.
Michael Higginbotham: People who didn’t know about [Thomas’] record, didn’t know who he was or what he had done as a lawyer, they were confused — like, you know, he’s a Black man replacing [Justice Thurgood] Marshall. So, what’s the problem?
Bill Brown: Our opposition to Clarence had nothing to do with race. It had everything to do with qualifications to be on the bench. Today, most of the attacks on the people who come before the Senate for confirmation are truly political. Right? Not so much to really do with their background and qualifications to be on the bench. When you see an aberration like Clarence Thomas, it strikes you that this person shouldn’t be where they are. And you’re really almost angry to see that they have accomplished so much. He’s so mediocre.
A. Leon Higginbotham (from Open Letter): I am 63 years old. In my lifetime, I have seen African-Americans denied the right to vote, the opportunities to a proper education, to work and live where they choose. I have seen and known segregation … But today is sometimes without hope; for I wonder whether their magnificent achievements are in jeopardy.
Bill Brown: If you’re out here making these statements, then somebody’s going to use it against you. So I think the average person that wants to go on the federal bench or wants a high level job won’t do something like this. That letter, I think, was very courageous of him. He had a lot of courage of his conviction.
In 1993, Higginbotham retired as a professor at Penn Law and from the federal bench.
Ronald Noble (in a tribute to Higginbotham): May I respectfully make the following request. During your retirement, please reduce your workload. Moreover, if I may be so bold as to take this heresy one step further, may I suggest that you vow to change radically your work day by adopting a 14 hour schedule rather than an 18 hour one?
Part Eight: A Farewell
“To suggest that Black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system.”
A. Leon Higginbotham, from his opinion in Comm. of Pa. v. Local 542
It wasn’t a queen’s funeral. But when he died on December 14, 1998 in Philadelphia, it was an occasion that brought out an ensemble of luminaries to pay their respects. Nelson Mandela and Bill Clinton wrote tributes; Rosa Parks attended; publications around the world ran obituaries. To many lawyers, politicians, and civil rights icons at the time, the attention was deserved: Higginbotham was royalty, or deserving of such — an honorable knight in black judge’s robes who fought for equality and humanity, finally laid to rest.
Michael Higginbotham: The doctors told him to slow down, but he couldn’t do it. And he actually testified in the hearings on Clinton’s impeachment — that was his last public appearance. And he passed away a couple of weeks after that.
He died at 70. And that’s young, especially in our family. You know, my mom is 97, my dad lived to 96. And I had another uncle that lived to be 95. So he died way too young, way too young.
He always looked up to Charles Hamilton Houston, who was Thurgood, Marshall’s mentor, and he died at 50. And he was often quoted as saying, you know, “I would rather die on my feet than live on my knees”.
Edward Becker: What has never ceased to amaze me throughout the 23 years that I knew Leon Higginbotham as both colleague and friend is how little he has changed, even as his reputation grew to towering proportions.
Neil L. Rudenstein (Harvard’s 26th president): He deliberately chose not to see himself as a prototypical individual American success story. He never thought that he had earned his way to success merely through his own combination of talent, aspiration, and hard work. He always assumed that if it had not been for the major contributions and acts of kindness of untold others, he would not have been able to achieve all that he did.
Stephanie Franklin-Suber: You needed to have your civil rights advocates who took to the streets. But you also needed to have your Higginbothams and your [Judge Clifford] Greens, who were strategically placed in rooms that Blacks typically had no representation.
Nelson Mandela: Judge Higginbotham’s work and the example he set made a critical contribution to the course of the rule of law in the U.S. and a difference in the lives of African Americans, and indeed the lives of all Americans.
Rudenstein: Leon was a large man — greathearted, restless, full of purpose, wise, all-embracing.
MORE ON A. LEON HIGGINBOTHAM JR. FROM THE CITIZEN
