Coleman, William T., Jr.

English

Penn Law: Legal Scholarship Repository

A FRIEND'S PORTRAIT OF HENRYW. SAWYER, IIIWILLIAM T. COLEMAN, JR."Henry W. Sawyer, III and his wife, Grace, were great art lovers.Does not law, like art, seek to accommodate change within the frame-work of continuity to bring heresy and heritage into fruitful tension?As Alfred North Whitehead observed:[A] society maintains its civilization by preserving its symbolic code whilegiving expression to forces that, repressed, could break a society asun-der. And so the basic dilemmas of art and law are, in the end, not dis-similar, and in their resolution-the resolution of passion and pattern,of frenzy and form, of convention and revolt, of order and spontaneity-lies the clue to creativity that will endure.IIt is daunting to write about Henry, particularly for the Law Reviewof Henry's law school-a school he revered, and to which he gave somuch honor. His classmates, colleagues, and the judges before whomhe appeared, received from Henry so much life, inspiration, intro-spection, direction, and fun, that to think of him no longer herebrings tears to our eyes as when the last bars of Wagner's Parsifal fadeinto silence. Many at the Philadelphia bar could write of Henry withas much knowledge, relish, and relevance as I-in fact, even more.I have, however, several significant regrets. The prime one, ofcourse, is that Henry no longer is here in person. Young lawyersnever again will be in his presence and never will share Henry's &anand intellectual verve. They will be deprived of his path of inspirationto affect the law in its highest function-to make this grand democ-racy under law work for all in a civilized fashion. Finally, I regret thatthinking about Henry reveals a basic defect in the Constitution. Hisvery presence calls into question a clause in article I, section 9-theone providing that "[n]o tide of nobility shall be granted by thet Senior Partner and Senior Counsellor, O'Melveny & Myers, LLP;A.B., Universityof Pennsylvania 1941; LL.B., Harvard Law School 1946; Law Clerk, Herbert F. Good-rich, United States Court of Appeals for the Third Circuit; Law Clerk, Mr. Justice FelixFrankfurter; Chairman, NAACP Legal Defense and Education Fund, 1961-1975 and1997-98; U.S. Secretary of Transportation, 1975-1977; Presidential Medal of Freedom,awarded by President WilliamJ. Clinton in 1995.' PAULA. FREUND, ONLAWANDJUMTCE i (1968).8 UNIVERSITY OFPENNSYLVANIA LAWREVIEWUnited States."2 As Thomas Jefferson once wrote to John Adams:"For I agree with you that there is a natural aristocracy among men.The grounds of this are virtue and talents."3 Some suggest that JohnMarshall, Alexander Hamilton, and James Madison would have addeda third attribute of "natural aristocracy"-courage. They, unlike Jeffer-son, fought in the Revolutionary War, just as Henry fought for thiscountry in World War II and the Korean War. In any event, perhapsduring a more credulous time, Henry W. Sawyer, III would have beenconfirmed into this rare class of persons.I truly enjoyed the time spent working through my thoughts aboutHenry. For it is an absolute, ultimate joy to relive time spent withHenry as a social friend, public figure, jazz expert, and ally or foe-beit in politics or litigation. I think of riding the Chestnut Hill Local,working through legal arguments to present to Thurgood Marshalland Lou Pollak4 for the Brown v. Board of EducatioW brief. I picture thefamily man, surrounded by Grace and the children, being guests ateach other's homes, drinking, eating, and trying to make sense out ofthe political process, as well as the practice of law. I remember thestrong disagreements-which we had many times-yet always keepinghumor, respect, and friendship.There is special affection for a human being who was-by any1953 definition-a Philadelphia Swell or Philadelphia Brahmin, yetknew that the A Train winds up in Harlem on 125th Street and Sev-enth Avenue, and has the courage to enjoy with me the night life inthat special part of New York. Or knows-as Henry did by experi-ence-that life and spirit resonate below Pine Street in Philadelphia.Or that Temple University is not the only place in North Philadelphiato learn how high and wide the human spirit can soar aided by jazz, bycourage, or by the inspirational preaching of a Leon Sullivan or a BillGray, Sr. on a Sunday morning. Or to slip off to a nightclub in Atlan-tic City when attending the Judicial Conference of the Third Circuit,and have me realize that someone knows and understands Lou Rawlsmuch better than even Bill Hastie did.62 U.S. CONST., art. I, § 9, cl. 8.3 Letter from Thomas Jefferson to John Adams (Oct. 28, 1813), available in USA:Letters of Thomas Jefferson, 1743-1826 (visited Nov. 1, 1999) <http://grid.let.rug.nl/-usa/P/g3/writings/brf/efl23.htm>4 Federal Judge, United States District Court for the Eastern District of Pennsylva-nia; Dean of the University of Pennsylvania Law School (1975-78).5 347 U.S. 483 (1964).6 William H. Hastie was a Judge for the United States Court of Appeals for theThird Circuit from 1950-71, and ChiefJudge from 1968-71.[Vol. 148:7HENRY W. SAWYER, HIHenry's distinctive mark, or genre, is that of a great gentleman:lettered, urbane, charming, witty, affable, and caring. He was some-one who dealt with friend and foe without condescension and alwayswas approachable. A French expression-escalator de mots--refers tothe brilliant reply you should have made to the raconteur at the cock-tail party, but only thought of going down the stairway when leaving.Often in a social, political, or legal conversation, and especially incourt, I envied the fact that Henry came up with the bright thought inthe right canter or pace and the right words when I was still stum-bling.This portrait also reveals a young person who sought expressionand meaning in a political party,7 the minority party in Philadelphia atthe time, and clearly not the party of Philadelphia's Swells. He hadthe nerve to live in its distractions, indeed to take an active part in itsactivities. He leavened its coarseness, for example by insisting on anordinance that required all new building projects to earmark one per-cent of its costs for art. Cities and counties across the country haveadopted this Sawyer brain-child. As the United States Secretary ofTransportation, I later adopted this policy for all projects financed inwhole or part by that Department.Legislation often is described as being like sausage-you don'twant to see it being made. Can you imagine the taste or zest of thesausage when mixed by Jim Tate,9 Raymond Pace Alexander,0 andHenry Sawyer? History truly will suffer if the tales of the PhiladelphiaCity Council from 1956-59 that Sawyer reveled in and retold over aSaturday beer at the Sawyer swimming pool are not among the rec-ords of Drinker Biddle & Reath.Now for a moment let us put on the canvas, Henry in the profes-sion he so dearly loved. A lawyer's life, like every other occupationallife, has much drudgery-senseless bickering, stupid obstinacies, cap-tious pettifogging-all disguising and obstructing the only sane pur-pose which can justify the whole endeavor. These, of course, take aninordinate part of the lawyer's time; they harass and befog the un-happy wretch and at times nearly drive him from the particular work-7I refer here to the Democratic Party.8 See Shannon P. Duffy, Drinker Litigator Henry Sawyer Dies at 80, THE LEGALINTELLEGENCER, Aug. 3, 1999, at 3 (documenting the mark that Sawyer left on thePhiladelphia City Council).9 President of Philadelphia City Council, and later Mayor of the City of Philadel-phia.'9 A leading member of the Philadelphia Bar, and later a judge in the CommonPleas Court of Philadelphia.1999]10 UNIERSITY OFPENNSYLVANIA LAWREVIEWplace where the work must be done. But near the end, when the trialalmost is complete or the appellate argument is to be called, the tur-moil must stop and craftsmanship must take over. Then the resultantjoy in creativity begins. And out of this murk, the pattern emerges.For the superb advocate, like Henry, it must be one's own pattern,and one's own expressions. In that atmosphere, at that crucial mo-ment, Henry reveals himself the master, as that rare lawyer who notonly knows, but, even more important, knows why, and, still more im-portant, knows how. The gifted, attractive, remarkable, capacious-minded Henry, with all-seeing eyes, lays aside efficiency and dispatch,as he never is shy of recondite learning, always on point.For example, in 1961, when he argued Deutch v. United States,"Henry knew how to work through the pitfalls. Just two years prior, theCourt upheld a contempt of Congress citation in Barenblatt v. UnitedStates.'2 Moreover, Watkins v. United States'3 essentially had spelled outthe almost absolute power of Congress. So what did Henry do? Firsthe skillfully briefed a far more sweeping constitutional question-should a witness be compelled to inform on a friend? Years beforeAmericans expressed their uneasiness over the Lewinsky-Tripp matter,Henry instinctively had grasped the discomfort of such a requirement.Any Court, even in 1961, would wish to avoid answering that difficultquestion and would seek resolution in a less controversial legal har-bor. But first Henry had to share the unfairness of his client's treat-ment by the court below. He made it crystal clear by suggesting thatthe person who had persuaded the defendant to stay in the Commu-nist Party was an agent of the FBI, a fact not even mentioned in theD.C. Circuit opinion. Thereafter it became easier for the majority todetermine that the Government had not shown the defendant's re-sponses about his associates to be pertinent to the congressional in-quiry.Another Henry signature style as an advocate was that he oftenpresented a Rhadamanthine detachment despite the fact that manylawyers think that detachment can subvert a practical advocate's zeal.In Greek mythology, after all, Rhadamanthus was a judge, not an ad-vocate. Thus many think detachment to be more desirable in a judge" 367 U.S. 456 (1961) (reversing a D.C. Circuit opinion that affirmed a contemptof Congress conviction for a congressional witness who, even though freely admittingall his own acts and meetings with reference to the Communist Party, refused to in-form on others).12 360 U.S. 109 (1959).13 354 U.S. 178 (1957).[Vol. 148:79]HENRY W. SA WYE, HIor scholar than in a trial lawyer in the pit or at the bar of an appellatecourt. But in Freund's classic book,14 Justice Brandeis reminds us thatgood opinions are made when the Court and the advocate are inequal rhythm. In other words, as Jeremy Bentham said, "The Law isnot made by judge alone, but by judge and company."15 Thus a splen-did technique in the hands of a master like Henry is to show detach-ment-even though presenting the legal position quite sincerely,quite effectively, and quite clearly-in order to get one to go alongwith your contentious legal point. Henry often observed that a strongbut subtle suggestion often is better than a hit on the head to makethe key point in an argument very effectively. He recognized that thegreat appellate judge does not wish to be accused, as Daniel Websteroften accused Chief Justice John Marshall, of just copying the advo-cate's brief.16One cannot end this portrait without a dash about Henry's tre-mendous sense of humor. His "all-seeing eye" gave him the capacityto engage in and admire colleagues of sharply different philoso-phies-whether right or left, rich or poor, black, red or white, dumbor brilliant, Jew or Gentile-so long as they fairly engaged in discus-sions and maintained a sense of humor. On one occasion, his loveand appreciation for the way that the Quakers managed theGermantown Friends School conflicted with the fact that Henry twicehad been to war. Henry had heard the anger of enemy fire and thusrealized that, unfortunately, tyrants often could not be subdued by thefriendly thoughts of Quakers, their ability always to listen, never tothink ill of a human being, and to seek unanimity in the MeetingHouse. As he left that one particular Quaker meeting, he said of anopponent (known for voluminous comment), "He never took his eyeoff the ball, for he never saw it." And when talking about Martin Dies,Parnell Thomas, or Joe McCarthy-three of witch-hunt fame-he of-ten remarked, "Why must there be so many bastards born in wed-lock?"Henry had an undying appreciation for Drinker Biddle & Reath-the law firm that gave Henry the head, range, and support to do whathe thought necessary in civil rights and civil liberties cases. Henry be-came an associate and a partner because of his brilliance as a lawyerand his ability to represent large industrial corporations in the bet-the-company cases, whether antitrust, securities, or patent matters. In a14 PAUL FREUND, ON UNDERSTANDING THE SUPREME COURT (1950).'- Id. at 78.16 See id. at 79-80.1999]12 UNIVERSITY OFPENNSYLVANIA LAWREV!EWnationwide electrical antitrust suit, General Electric, the lead defen-dant, retained Henry as local counsel 7 Before long, Henry's impres-sive command of the law and facts of the case induced the defendant'sGeneral Counsel to appoint Henry as lead counsel, replacing a pillarof the D.C. trial bar and senior partner in a major D.C. firm. Earlier,Henry had cut his teeth in the Viking Theatre case, a which introducedhim to the feverish, competitive world of movie distribution whereLouis Nizer was opposing lawyer. Henry also convinced Polish Com-munists that the American Courts' hallmark was fairness and justice.In the Polish Golf Cart case, where the United States was plaintiff,Henry achieved a complete victory for his Communist client' 9Henry-because of his performance as a corporate litigation law-yer-became a partner in record time, even though his career was in-terrupted after one year in law school by five years active duty as a U.S.Navy Commander in the Pacific in World War II. After starting inpractice, he served one year in the Korean War, and two years inEurope connected with NATO. He also handled more civil libertiesand civil rights cases than did most lawyers who practice exclusively inthese fields. Three were victories in the Supreme Courtr' but a com-puter search reveals over thirty-five cases in the lower courts. Many ofHenry's causes were unpopular, and this occurred long before the"white-shoe"21 law firms felt such pro bono work fit within their strat-egy. In fact, many often felt their business, commercial, and govern-mental clients would disapprove. But Drinker was strikingly different.On the day in 1961 that Henry argued Schempp--challenging theLord's Prayer recitation in public schools-Messrs. Drinker, Biddleand Van Dusen sat in the front row.From the day Henry started practicing law-soon after his firstyear of law school, interrupted by five years in the Navy, and duringhis work on the Law Reiew-he always sought variety in everything.He believed in Goethe's famous passage to those of any family wealth:1 United States v. General Elec. Co., 209 F. Supp. 197 (E.D. Pa. 1962).'a Viking Theatre Corp. v. Paramount Film Distrib. Corp., 320 F.2d 285 (3d Cir.1963).'9 See Outboard Marine Corp. v. Pezetel, 461 F. Supp. 384 (D. Del. 1978).20 See Lemon v. Kurtzman, 411 U.S. 192 (1971); School Dist. of Abington Townshipv. Shempp, 374 U.S. 203 (1963); Deutch v. United States, 364 U.S. 456 (1961).2, This term has nothing to do with race, but what the less fortunate of us who didnot go to Princeton or Virginia called those men who, in the style of 1938, wore whiteshoes when dressed properly.2' School Dist. of Abington Township v. Shempp, 374 U.S. 203 (1963).[Vol. 148: 7HENRY W. SAWYER, HI"You must labor to possess that which you have inherited."23 Henryonce expressed (during one of our Chestnut Hill Local rides) his rec-ognition that routine is a kind of narcotic. It keeps the mind so occu-pied that one thinks very little about what really matters, thus losingthe roar of the waves to the fullness of the sea. After all, such chal-lenging adventures are not important for a lot of mankind. Emersonput it right when he said that "[m]ankind is as lazy as it dares to be."24But Henry always has been driven to reject what Anatole Francesuggests in M. Bergerat "Je comprends, c'est mon faiblesse, il y abeaucoup de face de ne pas comprendre."2' For Henry, it is alwaysimportant to weigh the pros and cons, and always important to play arole in the great social and political issues of the day. Further, it al-ways was important to Henry that that the court understand the busi-ness issues of the client, or see that the wrongful uses of governmentalpower-which bring out the worst in man-be retarded. Senator Wil-liam Borah, and John Greenleaf Whittier, though a century apart,help supply the last splashes to this portrait of Henry, as Jackson Pol-lock, an artist so admired by Henry and Grace Sawyer, would do.Senator Borah said:The safeguards of our liberty are not so much in danger from those whoopenly oppose them as from those who, professing to believe in them,are willing to ignore them for their purposes.... The latter underminethe very first principles of our government and are far the more danger-ous.And Whittier, about Charles Sumner, wrote:"Forego thy dreams of lettered ease,Put thou the scholar's promise by,The rights of man are more than these."He-heard, and answered: "Here am It "272JOHANN WOLFGANG VON GOETHE, FAUsT, pt. 1, 1. 682 (1886) ("Was du ererbtvon deinen Vatern hast, Erwirb es, um es zu besitzenl").24 See, e.g., Commonwealth v. Ferguson, 552 A.2d 1075, 1079 (Pa. Super. Ct. 1988).2 Translated, the passage means, "I understand, it's my weakness; there is muchface-saving in not understanding." GERALD GUNTHER, LEARNED HAND: THE MAN ANDTHEJUDGE 359 (1994)." Nat Hentoff, Alan Balh's Wisdom, WASH. POST, Aug. 28, 1999, at A19.27 JOHN GREENLEAF WHTrIER, Sumner, in THE COMPLETE POETICAL WORKS OFJOHN GREENLEAPWHrrrIER 208 (1895).1999]* * * * * *

Friend\u27s Portrait of Henry W. Sawyer, III

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3338&amp;context=penn_law_review

Friend\u27s Portrait of Henry W. Sawyer, III

Abstract

Similar works

Full text

Available Versions

Penn Law: Legal Scholarship Repository