Aman, Alfred C.

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Indiana University Bloomington Maurer School of Law

Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1983 Honoring Judge Tuttle's Vision of the Law Alfred C. Aman Indiana University Maurer School of Law, aaman@indiana.edu Follow this and additional works at: https://www.repository.law.indiana.edu/facpub  Part of the Courts Commons, and the Judges Commons Recommended Citation Aman, Alfred C., "Honoring Judge Tuttle's Vision of the Law" (1983). Articles by Maurer Faculty. 928. https://www.repository.law.indiana.edu/facpub/928 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact rvaughan@indiana.edu. Honoring Judge Tuttle's Vision of the LawAlfred C Aman, Jr tClerking for Judge Tuttle greatly affects one's view of what humanbeings can do and be. It is very difficult, if not impossible, to be cynicalif one knows the Judge. Both as a judge and as a private person, hisdaily life reflects an approach to problems and people that is intrinsi-cally fair, compassionate, and just.There are few judges who have had the impact on the law thatJudge Tuttle has had and continues to have. As Chief Judge of theFifth Circuit from 1960 to 1967, the height of the Civil Rights move-ment, he led a court and wrote opinions which fundamentally changedthe legal landscape of the South: Jim Crow laws were declared unconsti-tutional; voting rights of blacks became a reality; racial discriminationinjury selection was curbed; state universities and colleges were desegre-gated, and education at all levels, perhaps one of the most importantopportunities for all children, was given paramount importance.In Woods v. Wight,1 for example, Judge Tuttle, in emergency ses-sion, heard an appeal from a district judge's refusal to issue a temporaryrestraining order enjoining the suspension of over a thousand schoolaged black children whose only crime was that they had marched in aprotest demonstration in downtown Birmingham over the weekend.Judge Tuttle, after hearing the arguments in an emotionally chargedcourtroom, issued his own injunction, as a single judge, prohibiting thedismissal of these students, pending appeal of the case on the merits tothe Fifth Circuit. As the Judge recalled many years later:Many of them were seniors in high school and would have lost theirentire opportunity to graduate during that year. And in the facts oflife that we are all familiar with, you question how many of theseyoung black children who were seniors and had been kicked out a fewdays before graduation would come back and get a high school educa-tion. So I ... was happy to feel that I had full justification in rein-stating those thousand school children that close to the end of a termwhich they otherwise would have lost.2The Fifth Circuit later ruled that the district court's refusal to issue atemporary restraining order was, under the circumstances, an appeala-ble order. It also upheld the power of a single appellate judge to issuet Professor of Law, Comell Law School1 334 F.2d 369 (5th Cir. 1964).2 F. READ & L.S. McGOUGH, LET THEM BE JUDGED 189 (1978).DEDICATION TO JUDGE TUTTLEsuch an injunction, pending appeal, and ultimately affirmed the sub-stance of Judge Tuttle's order.Judge Tuttle's leadership and the legal imagination and courageshown by him and other members of that great court made change pos-sible not only in the South, but in other circuits and the nation as awhole. Moreover, the sound legal basis of the results reached by theFifth Circuit added legitimacy to the rulings of the Supreme Court, byplacing the Court in the position of affirming the opinions of the South'sown judges, rather than imposing its will from on high in Washington,D.C.Throughout the Judge's career, both on and off the bench, he con-sistently has stood for a humane approach to law, one that focuses onthe parties involved and the particular human issues that they represent.For Judge Tuttle, the law is not just a chess game, but the complexembodiment of human attempts to resolve essentially human problems.It is a manmade construct with an integrity all its own, but one thatmust be applied to and ultimately affects human beings. It is theJudge's focus on the human dimensions of a case that explains why, onoccasion, he believes the law must change. It is also this concern thatexplains why cases do not linger in Judge Tuttle's office. The dispatchand care with which he renders his clear, logical opinions are increasedby his sensitivity to the real parties in the case before him and theirdesire to have the case resolved.Watching Judge Tuttle on the bench is a remarkable experience.His powerful legal, analytical abilities, his intrinsic ability to be fair tothe parties, his humor, and, most of all, his deep sense of personal integ-rity, are evident. In oral argument in one case, I recall, a governmentlawyer argued that the Court should affirm the conviction of an individ-ual who failed to report for the draft. After making his legal arguments,he added that the Judge must surely appreciate these points, becausethe Judge was "an old army man, himself," having reached the rank ofBrigadier General in World War II. Judge Tuttle responded immedi-ately and firmly: "Counsel, I sit here as a Federal judge, not a BrigadierGeneral.""The Judge," as one of his friends once put it, "knows the differ-ence between right and wrong." He is not, however, morally self-right-eous. The Judge does not preach. He simply gives you his reasons forhis views and, in the process, listens with great care and respect to yours.He is open-minded, willing to question his own attitudes and to changehis mind when he is wrong, but he is not without convictions. TheJudge's sense of fairness seems to be built upon his convictions and hisopen-minded willingness to challenge himself. Those who come beforehim become voices in his own inner dialogue.The Judge has a way, particularly in complex and confusing cases,1983]CORNELL LAW REVIEWof formulating a question that truly sums up the case. One knows in-stinctively that the answer to that question will determine the outcomeof the case. Often, when asking this question, the Judge will gesturewith his open right hand at counsel as if he is literally about to slicethrough the legal morass to the heart of the matter. But throughout hisprobing and skillful questioning of counsel, he is sensitive to their needsas well. I had always hoped that when I argued my first case it would bebefore someone like Judge Tuttle. (No such luck). He has a way ofthrowing a lifeline in the direction of new, tongue-tied lawyers that willat least get them started: "Counsel, don't you want to argue that thatcase means. . .?" "Oh, yes, your honor. That is precisely the point Iwould make and. .. "By far, however, the most lasting impression the Judge as a juristhas made on me is the compassion and legal imagination he brings tothe law. He sums up his legal philosophy this way: "When I see aninjustice in the record, I do all I can, within the parameters of the law,to correct it." This is the judicial philosophy of a judge who pays closeattention to the facts and peculiarly human dimensions of the individualcase before him and who recognizes that, in some cases, it is necessary"to take at least a short step beyond what had previously beendecided."3In Novak v. Beto,4 for example, the appellants argued that solitaryconfinement as administered by the Texas Department of Correctionswas cruel and unusual punishment. The record showed that a personsentenced to solitary was kept in a bare, pitch-black cell with a barrediron gate backed up by a wooden door to keep out all light and preventcontact with those in the hall. The prisoner was fed only two slices ofbread and some water each day and one "full meal" every seventy-twohours-a meal which the record showed was often incomplete. While inthe cell the inmate wore no shoes or regular clothes, only a cloth gown.He was provided a blanket, but no mattress, sheets or pillow. This treat-ment could continue for up to fifteen days, at which point the prisonerwould be kept in the same cell, but with the solid door open to let in thelight, and would be fed regular meals for two days. After this two-dayreprieve, however, the entire process could start all over again. Uponrelease from solitary, the inmate's head was shaved bald. One inmatewas kept in solitary confinement for a period of seven consecutive weeks.The majority was "deeply troubled" by the conditions of solitaryconfinement described in the record, but felt constrained by the casesand their view of what the court could do. They upheld the constitu-tionality of these conditions. Judge Tuttle dissented, noting:3 Novak v. Beto, 453 F.2d 661, 672 (5th Cir. 1971) (Tuttle, J., concurring in part anddissenting in part).4 Id.[Vol. 68:152DEDICATION TO JUDGE TUTTLEI am quite reluctant to disagree with my brothers of the majority onan issue which, I think, necessarily, involves the application of a moralcode to one of society's most difficult problems. However, there is noindication that the majority and I differ as to our concept of what themoral code should be. The difference lies in our concept of the extentto which judges can "risk" permitting their "own personal moralcodes" in such an area as this to be "impose[d] . ..on a perhapsunready society." For myself, I do not hesitate to assert the proposi-tion that the only way the law has progressed from the days of therack, the screw and the wheel is the development of moral concepts,or, as stated by the Supreme Court in Trop v. Dulles, the applicationof "evolving standards of decency."As to the limiting effect of the "extant law," . . we must re-member that in each of the cases referred to in the opinion in whichcruel and unusual punishment was found to exist, some court had totake at least a short step beyond what had previously been decided.This, in fact, is the genius of the common law. I think it is the duty ofthe court whose members are "deeply troubled" by these conditions toseek a means of removing them that may offer more promise thanmerely saying that "prison reform is primarily a task for legislatorsand administrators."5The qualities that characterize the Judge as a judge are, of course,deeply rooted in his personality. One cannot help but be impressed andinspired by the Judge's personal integrity and his ability to understandothers with imagination, generosity and humor. One is also struck bythe Judge's continuous capacity to grow. A tradition in the office islunch in the library, particularly since a cafeteria the Judge often fre-quented closed a few years ago. Along with his present clerks, it is notuncommon for a former clerk or two, as well as other judges' law clerks,to drop in to see the Judge. The discussion with the Judge may pursue aparticular point of law, an issue of current interest in the newspaper thatmorning, or the thesis of a book that he and Mrs. Tuttle have justfinished reading. (A good portion of their wide reading is done in thecar. Mrs. Tuttle reads aloud as they drive to wherever the Judge is sit-ting, and because this includes not only the Fifth and the Eleventh Cir-cuits, but often the Ninth Circuit and, on occasion, visits to the D.C.,Second and Sixth Circuits as well, they devour a number of books.)Over the years, not only when I was clerking, but whenever I havedropped in as a visitor, I have always been struck by the Judge's engage-ment with the world around him-the latest events, their significancefor the law, and the world at large. Everything is. of interest to him,from a local election to the implications of an increasingly interdepen-dent, global economy. The Judge's basic character and fundamental5 Id. at 672 (footnote and citation omitted).1983]CORNELL LAW REVIEWvalues were formed early in life, but the application of these principlesto a new and ever changing world has always been an important part ofthe Judge as a person. He continues to grow each day. Like the law, hetoo refuses to stand still.Fresh out of law school I was groping for answers to questions thatwent beyond the technique of law. What is a lawyer? What does itmean to be a professional? How should the professional and personalsides of life relate to one another? Is it right to allocate one's time andtalent exclusively to interests that always are well represented? Whatobligation does a lawyer have to society's outcasts, those with unpopularviews or those too poor to pay for effective legal counsel? Early on in myclerkship, I discovered a Baccalaureate address the Judge gave to thegraduate and professional divisions of Emory University in 1957. In it,he said:The professional man is in essence one who provides service. Butthe service he renders is something more than that of a laborer, eventhe skilled laborer. It is a service that wells up from the entire com-plex of his personality. True, some specialized and highly developedtechniques may be included, but their mode of expression is given itsdeepest meaning by the personality of the practitioner. In a very realsense his professional service cannot be separate from his personal be-ing. He has no goods to sell, no land to till. His only asset is himself.It turns out that there is no right price for service, for what is a shareof a man worth? If he does not contain the quality of integrity, he isworthless. If he does, he is priceless. The value is either nothing or itis infinite.So do not try to set a price on yourselves. Do not measure outyour professional services on an apothecaries' scale and say, "Onlythis for so much." Do not debase yourselves by equating your souls towhat they will bring in the market. Do not be a miser, hoarding yourtalents and abilities and knowledge, either among yourselves or inyour dealings with clients, patients, students, or flock.Rather be reckless and spendthrift, pouring out your talent to allto whom it can be of service! Throw it away, waste it, and in thespending it will be increased. Do not keep a watchful eye lest you slip,and give away a little bit of what you might have sold. Do not censoryour thoughts to gain a wider audience. Like love, talent is only use-ful in its expenditure, and it is never exhausted. Certain it is that manmust eat; so set what price you must on your service. But never con-fuse the performance, which is great, with the compensation, be itmoney, power, or fame, which is trivial.6When I came to clerk for the Judge in 1970, I knew I was extraordi-narily lucky and that I had a good "professional opportunity." I had noidea at that time just how deeply the Judge would touch my life and6 Tuttle, Heroism in War and Peace, 13 EMoRY U. Q., 138-39 (1957).[Vol. 68:1521983] DEDICATION TO JUDGE TUTTLE 157what a source of inspiration and strength he would become for me. Thisinfluence includes and goes far beyond the law. To witness his devotionto Mrs. Tuttle and their family is a privilege. "Like love, talent is onlyuseful in its expenditure and it is never exhausted." No one who knowsthe Judge can doubt that this principle guides him daily, nor that hislove of the law is the same love with which he enriches us. When mythen-fiancee and I decided to ask Judge Tuttle to marry us, it was be-cause we believed that there could be no more fitting a celebrant on theoccasion of that joyous promise.Most teachers, consciously or subconsciously, hear the voices of thegreat teachers they have had as they go about their work. One of mymain goals in whatever class I teach is to try to pass on at least some ofwhat Judge Tuttle has taught me.

Honoring Judge Tuttle\u27s Vision of the Law

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Honoring Judge Tuttle\u27s Vision of the Law

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