Byron White, Lawyer

By Marshall, Burke | The Yale Law Journal, March 2003 | Go to article overview

Byron White, Lawyer


Marshall, Burke, The Yale Law Journal


Some time ago, Yale Law School Dean Anthony Kronman put together a program designed to characterize some well-known, as well as other less visible, lawyers as "heroes." What he had in mind, I think, was to show students that law could be, and sometimes was in fact, a noble profession. I objected at the time to the term "heroes" (and I believe I said as much on a panel put together by the Dean) because I felt that the lawyers about which we talked were all really just doing what lawyers should do--representing their clients, and, in doing so, making intelligent and prudent use of their professional skills. It may be that, at times, such representation collides with deeply held convictions of a powerful public. That was so, over and over again until quite recently--for example, in the case of representation of civil rights workers in the South, especially by white lawyers. Similarly, that was so, in the 1950s, in the case of providing legal support to persons thought to be allied with Communists, or at least dangerously leftish groups. I believed at the time of Dean Kronman's venture, and still believe, that the lawyers undertaking such representations (especially those very successful and widely respected lawyers who had a solid practice upon which to fall back) should be looked upon as lawyers simply doing lawyers' work as it should be done.

These matters are brought to my mind by the opportunity to write a few words about Byron White as I knew him best--a lawyer at work, before he was made a Justice. I did not know White myself in 1961 when he and Robert Kennedy offered me a job in the Department of Justice. While at least two of the lawyers brought into the Department at that time--Nick Katzenbach and Lou Oberdorfer--knew White as a fellow student at the Yale Law School in the 1940s, I did not reach the Law School until the early 1950s. So, the first personal acquaintance, and first professional collaboration, I had with White was when he was Deputy Attorney General of the United States, and I was a relatively obscure Assistant Attorney General. He was a wonder, a "talented, modest man," in the words of Nick Katzenbach, practicing law with intelligence, prudence, compassion, vision, and careful skill.

It was hard, I think, for Byron White at that time to escape the burdens of being thought of as a hero. He already had been a press-created football myth at college, a star performer in professional football, a valuable seagoing naval officer during the war, and the most outstanding student ever to have attended the Yale Law School. He was also a Rhodes Scholar and the recipient of other honors. But White, as I got to know and deeply admire him, was merely, or simply, or remarkably, a wonderful Deputy Attorney General--a great lawyer acting at the peak of his profession.

Many authors writing about the period have stated that White was brought into the Justice Department to balance, or complement, the absence of relevant professional experience on the part of the new Attorney General, Robert Kennedy, the President's brother. I have no special information about the considerations that went into the appointment (that may well have been one of them), but whatever they were, the fit was perfect; what that job required was an experienced, intelligent, and far-seeing professional lawyer, which is what White was (in addition to being a public superstar).

One of the several principal jobs of the Deputy at that time was the coordination of the professional work done by the hundreds of career lawyers employed in the Department. (There were far fewer than now; the struggling little Civil Rights Division, which I had the good fortune to head, had fewer than forty, of whom only a dozen or so were courtroom attorneys.) There were, of course, Assistant Attorneys General for the various Divisions, but there was no real hierarchy or bureaucratic structure because of the way that Attorney General Robert Kennedy, and White next to him, ran things. …

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