Butzner, John D., Jr.

Ervin, Sam J., III

Murnaghan, Francis D., Jr.

English

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 73 | Number 1 Article 311-1-1994Judge James Dickson Phillips: A TributeSam J. Ervin IIIFrancis D. Murnaghan Jr.John D. Butzner Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North CarolinaLaw Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationSam J. Ervin III, Francis D. Murnaghan Jr. & John D. Butzner Jr., Judge James Dickson Phillips: A Tribute, 73 N.C. L. Rev. 1 (1994).Available at: http://scholarship.law.unc.edu/nclr/vol73/iss1/3A TRIBUTE:JUDGE JAMES DICKSON PHILLIPS, JR.James Dickson Phillips, Jr.-former Dean of the Schoolof Law and distinguished jurist on the United States Court ofAppeals for the Fourth Circuit since 1978-recently elected tojoin the ranks of the Fourth Circuit's senior judges. The edi-tors of the North Carolina Law Review are pleased to helpthree of Judge Phillips's colleagues pay tribute to a man whosecontributions to the School of Law and the federal judiciaryhave been immeasurable.SAM J. ERViN, III*I am honored to be able to join my colleagues, Judges Murnaghanand Butzner, in paying tribute to our good friend, J. Dickson Phillips,Jr.Judge Phillips was appointed to the United States Court of Ap-peals for the Fourth Circuit by President Carter on August 11, 1978,filling a vacancy created by the death of another North Carolinian,Judge J. Braxton Craven, Jr. Judge Phillips served on this court withdistinction as an active judge until he elected to take senior status ef-fective July 31, 1994, a total of almost sixteen years. He will, I amconfident, continue to sit with the court on a regular basis in his newcapacity as often as he is needed.When I came on the court in May 1980, Judge Phillips was one ofthe first Fourth Circuit judges to welcome me and to offer his assist-ance. I gratefully accepted his offer and I have continually sought andrelied upon his wise counsel and sound judgment since that time.To understand fully the value of Judge Phillips's services to thiscourt, one must reflect upon his varied professional career. Born andraised in Laurinburg, he entered military service during World War 11and fought in a number of battles, including the Battle of the Bulge.He helped to lift the German siege of Bastogne.Upon completion of his active military service and following hisgraduation from law school at Chapel Hill, he actively practiced law inLaurinburg and Fayetteville for approximately fifteen years. Amonghis partners were former Governor and United States Senator TerrySanford and Donald McCoy, who still heads one of the leading firmsin eastern North Carolina. I know from conversations with Judge* Chief Judge, United States Court of Appeals for the Fourth Circuit.NORTH CAROLINA LAW REVIEWPhillips and other judges and lawyers that he was a small-town lawyerin every good sense of the term. He was engaged in both civil andcriminal law, representing both rich and poor clients (primarily, I sus-pect, the latter), as well as unpopular defendants and causes-in short,almost anyone and everyone who sought his aid and advice.During his private practice-and throughout his life-Judge Phil-lips has been a keen observer of human nature. He understands thestrengths and weaknesses of our society and of his fellow human be-ings. The insights he has developed and the actual experiences he hashad enable him to bring a needed realism to his work as a judge, andto evaluate accurately the likely motives of both litigants and lawyers.A career change led Judge Phillips to the University of NorthCarolina at Chapel Hill, where he began to teach at the School ofLaw. Ultimately, he became the dean of that institution. He recruiteda large number of outstanding faculty members for the law school, leda fund-raising campaign which made possible the construction of thepresent physical plant, and guided that institution to new heights ofexcellence as a nationally recognized and acclaimed law school. Hesubsequently turned the office of dean over to Robert G. Byrd, butcontinued his teaching duties. As both dean and professor, he trainedand influenced for good 1housands of young lawyers, many of whomare current members of the North Carolina Bar. Those who studiedunder him revered him not only as a teacher but also as a friend andwise counselor. Until very recently, Judge Phillips continued to sharehis legal knowledge with others by teaching a course at the Duke Uni-versity Law School.On May 22, 1977, the untimely death of another distinguishedNorth Carolina jurist, J. Braxton Craven, Jr., created a vacancy on theUnited States Court of Appeals for the Fourth Circuit. A merit selec-tion panel interviewed a substantial number of prospective nomineesand selected the five best qualified persons for the position. Amongthose recommended in addition to Judge Phillips were a highly re-garded federal district court judge, a very able trial lawyer, and twoother outstanding legal educators. Upon the recommendation of Sen-ator Robert B. Morgan, President Carter named Judge Phillips to thepost, and he was quickly confirmed by the Senate. He began his newduties on August 11, 1978.In describing Judge Phillips's career on the Fourth Circuit, onemust note his vast legal knowledge, his hard work, his common sense,his good judgment, and his humanity. He constantly reminds his fel-low judges that our first responsibility is to render prompt, sound, andfair decisions in the cases that come before us. His written opinions[Vol. 73A TRIBUTEfor the court are characterized by clarity and precision, and reflect thecare with which they are crafted. He is unfailing in explaining thereasons for the results he reaches, and he has a talent for fitting eachdecision into the spectrum of previously decided cases. He reveresprecedent and follows it when he believes that he is required to do so.He does not, however, hesitate to "plow new legal ground" when thecourt confronts unfamiliar fields of law. His comments and sugges-tions to his colleagues about their opinions carry great weight becauseof the universal respect in which he is held by his fellow judges. Thisis true in part because he does not ever claim that he is right and thatthey are wrong; rather, he is a kind and diffident critic, recognizing theimportance of disagreeing without being disagreeable.It is impossible to discuss-much less detail-the significant opin-ions Judge Phillips has authored for the court during his more thanfifteen years on the bench. The most noteworthy have involved FirstAmendment issues, civil rights, federal jurisdiction and civil procedure(one of his specialties), criminal procedure, voting rights, education ofthe handicapped, limits on conspiracy, double jeopardy, and othersubjects too numerous to mention. He is an ardent defender of theBill of Rights, and a protector of the individual against the excesses ofauthority at all levels of society. He seeks to ensure that all those whoseek justice in our national courts not only see their cases promptlydecided, but understand why the court ruled as it did.Judge Phillips's active participation in oral argument has addedclarity and color to the court's proceedings. A former law student ofJudge Phillips was once arguing a civil case before a three-judge panel,on which Judge Phillips sat. The lawyer made an egregious misstate-ment of some procedural rule of law. Realizing that he must have saidsomething wrong, the lawyer then said, "Judge Phillips taught me all Iknow about procedure." From the bench Judge Phillips immediatelyresponded, "I deny it."Judge Phillips has not hidden his light under the Fourth Circuit'sbushel. Every chief judge of this circuit has called on Judge Phillips toassume roles of administrative responsibility. He has willingly led orparticipated in studies of judicial conference membership, ways to im-prove internal court procedures, and planning of conference pro-grams, to mention only a few. He also has been a contributingmember of several committees of the Judicial Conference of theUnited States (the national governing body for the federal court sys-tem), including the vital committee on the rules of civil procedure,which has just completed a major overhaul of those important rules.1994]NORTH CAROLINA LAW REVIEWEvery judge is privileged to have three law clerks work besidehim or her each year. From personal observation, I can testify thatJudge Phillips provides each clerk with a liberal legal education, in-struction in the ways of the world, sage advice about career opportuni-ties, support and encouragement when things look dark, and a lastingfriendship. Those young men and women are indeed fortunate tohave had him as a teacher, and they would be the first to say so.I can also attest that Judge Phillips has given of himself to hisfamily, his church, his community, his friends (of which I am proud tobe one), and in earlier years before he was constrained by judicialcodes of conduct, to his political party. He has been and is what a lawprofessor of mine once described as a "dues-paying member ofsociety."I am delighted to participate in this tribute to James DicksonPhillips, Jr., who is, without question, one of the most outstanding ap-pellate court jurists that North Carolina has ever produced.FRANcis D. MURNAGHAN, JR.**It should be borne in mind that I was the first appointee to theFourth Circuit to follow Judge J. Dickson Phillips, Jr. That means thatI have had ample, indeed abundant, time to value and appreciate thestrength of his services, both as a prompt and devoted attender tobusiness and, more importantly, as an imaginative and inspiring mem-ber of the judiciary. In fact, as Gerald Gunther has recently said ofJudge Learned Hand, while he "rarely suffered from hero worship, hisadmiration, even idolatry, of Holmes was extreme, expressed in bothpublic and private, a veneration that exceeded even the esteem he feltfor his Harvard professors."1 The same comparison relates to my feel-ing for Judge J. Dickson Phillips, Jr., and to my feeling for my ownHarvard professors.' Judge Phillips, like Oliver Wendell Holmes, hasbeen" 'the epitome of what a judge should be,' a continuous object of'affection,' 'a dear friend, a wise guide and the example of all that Imost cherish.' "I Judge Hand made that statement after only nineyears as a federal judge, while I have been in close contact with JudgePhillips for over fifteen years, so I proudly assert that the comparisonis one that waxes stronger with every passing day.** Circuit Judge, United States Court of Appeals for the Fourth Circuit.1. See GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 162 (1994).2. My own distinguished professors included Zechariah Chafee, Paul Freund, MiltonKatz, and Warren Abner Seavey, to name only a few.3. See GUNtMER, supra note 1, at 162.[Vol. 73A TRIBUTEIn short, Judge Phillips has displayed all the qualities and compe-tence one hopes to find in a first-class judge.JoI D. BUTZNER, JR.***In August 1978, James Dickson Phillips, Jr., brought to our courta scholar's appreciation and understanding of the law and the princi-ples that unite its diverse subject matter. When he joined the court, itconsisted of seven active and three senior judges. ]Eight of its mem-bers had been district judges. But as Judge Phillips has demonstrated,lack of prior judicial experience is no impediment to exceptional ser-vice on an appellate court. All members of the court had been suc-cessful lawyers, and some had served in federal, state, or municipalgovernment. Some had taught as adjunct professors of law, but nonehad the academic, scholarly approach to jurisprudence that JudgePhillips contributes to the law of this circuit and, through the influenceof his opinions, to the law expounded by other courts throughout theland. He has written on nearly every subject that finds its way to afederal appellate court, as well as on legislative reapportionment, withwhich most judges never have to cope.His opinions, though incisive, are rich enough to provide soundprecedent. When one's research leads to a Phillips opinion, one canrely with confidence on his mastery of the issues. His opinions aremarked by creative energy; one can sense the enthusiasm with whichhe approaches a difficult problem. A good judge can fairly decideeven the most difficult case. But it takes a superior one, such as JudgePhillips, to weave the law and facts into a fabric that both fairly de-cides the instant case and provides a helpful rationale and standardsfor future cases.It soon became apparent to Judge Phillips's colleagues that yearson the faculty of a great law school and in the general practice of lawhad honed his knowledge. Wit and charm leaven his views. To serveon a panel with Judge Phillips is a pleasure. In most postargumentconferences, a panel readily agrees-at least tentatively-on the dis-position of an appeal. But when differences arise, Judge Phillips lis-tens respectfully to the views of others. He presents his own ideascomprehensively and forcefully, but without rancor. He infrequentlydissents because, more often than not, his views prevail. His dissentsare crafted to explain his views about the preferable outcome of theappeal. Though he has not attained the ideal of never mentioning the*** Senior Circuit Judge, United States Court of Appeals for the Fourth Circuit.1994]NORTH CAROLINA LAW REVIEWmajority, he realizes that the embattled forces are the litigants andthat the majority is not the enemy. No vituperative or condescendinglanguage mars his writing.Judge Phillips's attitude at oral argument draws the best fromcounsel. He does not treat the bench as a platform for disputing whatcounsel say. But if the argument becomes fuzzy, a few of his well-directed questions or observations nudge it toward the proper focus.Judge Phillips's knowledge of procedure was put to good usewhen the Chief Justice appointed him to serve for five years on theJudicial Council's Advisory Committee on Civil Rules. The quality ofhis opinions prompted his appointment to the Board of Editors of theFederal Judicial Center Writing Manual. In short, Judge Phillips hap-pily combines the characteristics of a judge's judge and a lawyer'sjudge.As friends and law clerks can attest, Judge Phillips and his charm-ing, capable wife, Jean, are delightful host and hostess. There is, how-ever, another aspect of Dick Phillips's life that is not so well known tohis colleagues. He is a former member of the North Carolina WildlifeResources Commission. From boyhood he has loved the beaches andmarshes of eastern North Carolina. He understands the flight of theshore birds and what it foretells. He knows the track of the ponder-ous sea turtle, which lumbers ashore to deposit eggs and then returnsto the deep. He can spot a slough that helps a surf fisherman takeadvantage of the tide. He enjoys running a small boat, propelled byan outboard motor, into the open sea beyond the barrier islands insearch-usually successfully-of bluefish or mackerel. But ifperchance the ocean yields no fish, he can give a fisherman's classicreason. Jean, a naturalist in her own right and ofttimes the boat's firstmate, understands.The North Carolina Law Review rightly honors a wise and com-passionate judge, James Dickson Phillips.[Vol. 73

Judge James Dickson Phillips: A Tribute

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Judge James Dickson Phillips: A Tribute

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