The 2010 Morton A. Brody Distinguished Judicial Service Award was presented to the Honorable Nancy Gertner, U.S. District Court Judge for the District of Massachusetts, in a ceremony at Colby College April 11, 2010. A public award ceremony and address by Gertner took place at 7:30 p.m. in Ostrove Auditorium in the Diamond Building. Events began with a panel discussion on “The Evolving Impact of Technology on Law and the Courts” at 4 p.m.
The Brody Award, created in 2000, honors an outstanding federal or state judge who embodies the qualities of integrity, compassion, humanity, and judicial craftsmanship exhibited by the late Judge Morton A. Brody, who taught at Colby and was the husband of Associate Dean of Admission Judith Levine Brody ’58.
Before her appointment to the federal court in 1994 Judge Gertner was a defense and civil rights lawyer in Boston. She litigated significant cases affecting reproductive rights, employment discrimination against women, and desegregation of Boston’s public schools. As a judge she has decided cases where racial profiling, employment discrimination, and fair housing were at issue. She is one of just two women (with Supreme Court Justice Ruth Bader Ginsburg) to have received the American Bar Association’s Thurgood Marshall Award.
Judge Gertner has written widely on legal issues including constitutional and criminal law, criminal procedure, sex discrimination law, and the U.S. Sentencing Guidelines. She has worked internationally, teaching women’s rights and human rights in Europe, Asia, and Africa, including training Cambodian lawyers appearing before the War Crimes Tribunal there and working to rebuild a legal system in Liberia.
The panel discussion, “The Evolving Impact of Technology on Law and the Courts,” began at 4 p.m. in Ostrove Auditorium, Diamond Building, moderated by the Honorable John Woodcock, Chief Judge of the U.S. District Court for the District of Maine. Panelists included: the Honorable James B. Haines Jr., U.S. Bankruptcy Judge for the District of Maine; Adam Liptak, Supreme Court correspondent for the New York Times; the Honorable Janet Mills, Maine’s attorney general; and John Reinstein of the American Civil Liberties Union, Massachusetts.
Judge Gertner, a graduate of Barnard College and Yale Law School, received an honorary doctor of laws degree from Colby with the Brody Award. She is the sixth recipient of the award, following Leonie M. Brinkema (2008), Frank M. Coffin (2006), Richard Sheppard Arnold (2004), Ann Claire Williams (2002), and Guido Calabresi (2001).
What we learn from Elijah Lovejoy, and from others before and after him, is that a moral force cannot be stopped with a mob, a murder or a jail cell. The mob, stupid, as they all are, thought that by destroying Lovejoy’s press, they could preserve the institution of slavery.
I can best illustrate out of my own years.
In 1954 the U.S. Supreme Court reversed an old case in railroad transportation, called the United States Vs Plessy, handed down by an ultra-conservative-minded court in 1896. It thereby brought about a long overdue end to educational segregation on the basis of race.
Quite promptly, the KKK and White Citizens Council mentality set about to thwart it by suppression of discussion, by boycott, intimidation and violence.
Yet, keep in mind that Lovejoy lost his life in 1857 and that slavery was the subject of the Lincoln-Douglas debates 20 years later, and was not truly ended until the 13th Amendment was ratified in 1855, we cannot say the progress since 1954, slow as it has been, is not without precedent. It is not yet a completed process, but it is a process, and it will be legally satisfied within a relatively short time. Then will follow the refining and humanizing of it. We are all ashamed that in our country it required court action to say what we, the people, should have said before.
Now we have the sit-ins, and again we see the same old formulae. Those who oppose a moral force rush to make laws and arrests, to intimidate, to suppress an idea. But the sit-ins which have for their purpose the erasing of one of the most preposterous discriminations — namely, that a colored customer may buy everything in a store except that a sandwich and coffee or milk must be bought segregated, have already been ended in most of the places where these projects have been carried out. And they will win everywhere for the simple reason that they have moral force on their side.
They seek to end a situation which affronts human dignity. Have we given this force enough help?
I read psychologists and sociologists in books and magazine articles, who say that the adult generation of today is one of the most unselfish, generous and tolerant in history. But, they say, it wants to be left alone to enjoy its cook-out patios, its cars, its boats, its comforts of home, without any public responsibility. It does not, they say, wish to be involved. It wants to be secluded from problems. Therefore, it suffers fools gladly and it permits political corruption to thrive because it does not like to be drawn into noise or controversy.
And, just, the other day, I met with a really eminent psychologist and at lunch he talked of the students at a very large institution where he is a renowned member of the faculty. He said that students there today were more mature than any in our history; that they were better informed, but that they were so bent on withdrawing from all but their own interests, that it was difficult even to obtain men to offer for elections as class officers, and that ambition for after graduation for anything beyond a comfortable, average life was frowned upon. I don’t buy all of this. I am, for all my frequent days of frustration and despondency, capable of optimism.
I remember my own smug, post-WAR-I generation. It was not an admirable one. It was one accused of being soft and cynical and it was predicted it would spawn an even softer, more cynical generation. Well, I recall, as a war correspondent, seeing them on bombing runs, on the lunge into Germany, and in the Pacific, and they looked pretty good most of the time, and magnificent when the need was there.
So, I trust and have faith in this college generation. I am sure there are Elijah Lovejoys in it — if the need arises.
I am old enough, however, to indulge for a while in the delight of the aging – namely, to moralize and reminisce a bit. You will indulge me patiently, I trust, as all young captive audiences have done before – and at other institutions.
Out of experience I am convinced of the need to have compassion and to believe. We presently are in the of a great surge of the industrial revolution and of growing competition between two great forces, But there are always those who, like the states rights stereotypes in the South – and their counterparts in other fields here and elsewhere – keep turning their eyes in search of a world that no longer exists. Too many of us continue to turn our eyes away from change, becoming petulant about it, instead of involved with its direction.
We newspaper men and women are equally guilty of this. I learned a lesson by being in Austria at the time when the Germans moved there in the spring of 1938. For a newspaper man it was a sort of journey on the road to Damascus. There, for the first time, I saw all rights, guaranteed in a written, published constitution, disappear because the will for them had disappeared long before. I saw men and women arrested without warrant; I watched physical abuses of people because of religion; I saw books burned, and I saw magazines and newspapers from outside Austria removed.
None dared protest. There was no Elijah Lovejoy among the Austrians. In fact, so bad was the economic and political situation in Austria that a majority of the people cheered the arrival of Nazi totalitarian forces.
In those historic days I came to see with great clarity that a written law and constitution do not necessarily create a guarantee. Now, do not misunderstand me. We live by law. We are a government of law. But, all our laws are derived from the consent of the people . . . and the people, when they choose, can place themselves above the law, or, conversely, they can by apathy and indifference, reduce a law, or even a constitution, to nothing at all, allowing it to be croded away.
Therefore, in this country we enjoy a freedom of dress, speech, and assembly only because, and as long as, the people will it and defend it.
Sometimes I am disturbed because of a certain plaintiveness, even smugness, on the part of the press, and too much of an attitude of saying, “Let me alone. I am protected by the Constitution.” I think if we do not use that freedom of press to participate in issues it will wither away like an unused muscle. But let me ask of you if this is not generally applicable. A great many people are inclined to say, “Oh, I don’t worry about government or politics. After all, the Constitution takes care of rights.” This attitude gives me great concern. I think it is necessary to recognize that our power comes from the people, who cherish the principles in our Constitution, and not from a law itself. The people to whom we newspaper people look are our readers. Therefore, while we must forthrightly move to meet, and defeat all threats to a free press, we must even more forthrightly see that we deserve it. We can do that only by using it.
The just-concluded elections were dramatized by television. The so-called great debates, which were really press conferences, each attracted gigantic audiences of from 60 to 70 millions and more. They enabled Sen. Kennedy quickly to introduce himself to almost half the nation’s population. They quickly brought him up on even terms, in image and projection of personality, with the vice president, who was much better known and established. People saw and heard them discuss issues. They were in controversy. They made controversy apparent.
I agree with those who think that both Sen. Kennedy and Vice President Nixon erred in discussing Quemoy, Matsu and Cuban policy.
Yet, it was by no means a dead loss. Millions of Americans who had never informed themselves on these issues, were made aware of them and their importance.
Nor do I agree that newspapers and the printed word in general were outdone by television. The two mutually assist one another. There was an immediate increase in newspaper readership as the millions turned from the TV questions to read full accounts, texts, editorials, and columnist-analyses of the high-level dialogue.
Indulge me if I paraphrase part of Sen. Kennedy’s campaign to describe what I think the television debates, and the other dramatic uses of it mean for newspapers.
We on newspapers, in radio and television, cannot be satisfied. We cannot remain on dead center. We must do better than we have. We must improve our writing, our interpretations, our comprehensive reporting. We must, in a sense, lose some of our deadening objectivity and return to a livelier, more personal sort of journalism. We must begin to move.
And, for TV and the printed word, we must learn to communicate. The citizen today is almost literally drowned in words. Daily papers, radio and television news commentators speak to them in verbal headlines at the half-hour and the hour. And yet, we continue to be miserably ill-informed.
Here is a problem and a fact which must give pause to all of us who deal with words — teachers included.
But, let us return to our central theme, which is the spirit of man and his capacity to believe — this was what characterized Lovejoy and others like him — he believed. He had values. His mind was not withdrawn on the issue. It believed.
In Russia with Vice President Nixon a summer ago, I visited the Baptist church in Moscow. It includes what is, in Russia’s vast population, a mere handful, perhaps a half-million. I saw perhaps 1,200 of them crowded into one two-hour service. One who believes in God in Russia is called a believer. These persons, young and old, had given up all chance at a career to become believers. All their lives they would be restricted to some inferior position without hope of advancement, because they had chosen to be believers in a non-believing government. I was impressed with what I saw in fact — not theory. They had made a hard choice. For belief they had abandoned comfort, higher pay and promotion.
And then, a summer later, came the Francis Powers case. This young man, lonely and lost in a Soviet prison, has troubled me since his name first leaped out of the headlines.
I think he must trouble the conscience of all of us who dealt with the task of communication — in words written, spoken or taught. And I thought of him in comparison with Lovejoy.
Powers, captured when he and his U-2 plane came down to earth in a manner still not clear, obviously did not consider himself a servant of his state. We must ask ourselves why.
Plato, in writing of the state, said that even in the ideal state, the moral convictions of citizens are not supposed to arise from personal insight. They rest, he said, more than three centuries B.C., on opinions implanted by education, and are thus taken on trust. The good civilian or soldier, after all, he said, is not living by a knowledge which is his own — the foundation of citizenship virtue must be insight into a system of absolute values embodied in the very structure of the universe.
Lovejoy had a set of values. He knew what he believed.
Powers did not. Perhaps we should be honest enough to say he had not any opinions, or values, implanted by education, either formal, or that derived from association or participation in community life. He was, as he insisted, just a hired hand — a pilot — getting $30,000 a year to fly dangerous intelligence missions. There was a quiet, frightened valor in him, but no hint that he regarded himself as representing the country’s interests, or, worse, that he had any knowledge of those interests. Against the harsh possibilities of his dilemma he could use only that which had been absorbed by mind and spirit in the whole of his 31 years as a young American. He must have at least looked at a great many newspapers and heard some of the more competent commentators on TV and radio. But there is no evidence any of us reached his mind.
He testified that he had “never paid any attention to politics in America” — had, in fact, “never voted.” He knew little of the meaning of his country.
Nor had he ever had any interest in learning anything about the Soviet Union, save to read in the papers about its scientific achievements.
Asked if he were “mentally prepared” to fall into Soviet hands, Powers said he was not. He had been told he could not be shot down at 68,000 feet.
He had, he said, “been proud and happy” to get the job with the CIA when he was turned down by the commercial lines.
His defense was a plea of political innocence and ignorance. “I was just a pilot,” he said. He did not know about the Summit meeting in Paris; he was not aware of the implications of his flight, which the President of the United States later was to describe as “vital to the defense of this country.”
Here we have a man turned 31 years old who could fly a plane but was uninformed about all else in his life. He had a nice wife. He was sitting pretty, making $30,000 a year. And when that dream ended 1,200 miles inside Russia, he could say, with complete honesty, and no awareness of self-contradiction, that he was sorry he took the job he liked so well, that he regretted having made the flight; that he did not wish to do so, but was afraid of being thought a coward. And, anyhow, someone else was responsible for it all. “Blame those who sent me,” he said.
And so he answered up, and if his replies sustained all the major points of Russian propaganda against this country, he did not seem even to know it.
Do we have a picture of much of America today…immature, vague, uninformed, unable to rationalize self with events; wanting desperately to have all the comforts of life with none of the responsibility?
Powers reflects what has been imparted to him in his educational processes in America — in and out of books. And, we must add, newspapers, too as well as TV and radio. What has been our part in the lives of the millions with backgrounds like Powers? What is it in American life that caused every television station in America to receive protests during the showing of the two national conventions last summer? These thousands of callers were angry because they couldn’t see Gunsmoke or one of the several Western or comedy shows.
Francis Powers had very little education. He represents, I am afraid, what we mean when we speak of a “mass audience.” There is but one state in this union, according to the last figures I saw, which has an educational average for its people as high as a secondary school graduate. The others range down to as low as the seventh grade. It is from these that we receive protests about printing too much foreign news, too much highbrow stuff. If you come right down to it this is one reason why the democracies have so difficult a time with foreign policies. The Congress must pay attention to mass public opinion to be elected. And the State Department must pay attention to the Congress. And mass public opinion isn’t interested in problems involving great decisions about international policy because it hasn’t read about them, does not have the background of education and mental stimulation to care about becoming informed. We thereby threaten the strength and stability of the Republic.
So we come to a question.
Where have the media of information failed? Wherein has education failed, elementary, secondary, college?
We can peer into the future without a crystal ball. Population is increasing at the rate of about 3 million per year. Ten years from now it will be around 200 million. In the year 2,000, which is but 40 years away, we’ll have a population of about 353 million. What will that mean to schools, churches, newspapers, and government, local and federal?
We are just started on a vast system of federal highways which will link every region of America. Feeder airlines already are becoming important. Will we develop two or three National newspapers which have publishing plants in each great region and transmit by new electronic devices the pages of the paper? Papers could be moved out from each great center on trucks and feeder airlines.
In the years ahead, the experts tell us, cities will stretch for perhaps a hundred miles or more — as is almost true now if we think of the great urban complex which stretches from Philadelphia to New York on to Boston. In the years 2,000 what will have happened, by way of change, to the present image of the local paper? How many of us are planning for distribution, for example, 20 years from now when there will be 60 million more Americans? What will local papers be doing?
It will be interesting to watch some trends already in evidence and see what changes newspapers will make. The news must always constitute the body of a newspaper. But how will we handle it? Will we wait until television forces changes – when it may be too late? But here again is something we know. There are a great many editorial pages which don’t appeal to a reader after he hears and sees a top-flight professional editorializing on television.
There are papers which say, “We fit ourselves into community direction.” And they do – even though the community government be corrupt, even though human rights are unsafe, even though the school system be starved. They comfortably “fit themselves in.” They avoid controversy. They do not use their freedom to speak out. What honest young journalism graduate would want to stay long on such a paper? And, unhappily, there are more than a few such papers.
Some editors are lazy. Others have lazy scrooges for publishers. About the only time a substantial number of America’s editors get out of their home towns in the span of a year is to go to the ASNE convention. Must editors withdraw from life and events?
All this, of course, is old hat. Still, I want to say again – when the sale of a newspaper comes, or when a paper dies and is interred – take a look and see how much of the dying came from inside rather than outside. What sort of management and direction did the deceased have? Did the paper try to live?
But I am also bringing this to a close. Let me admit that I am a sentimentalist about newspapers. I have liked every minute of my almost 38 years of work, including even the hangovers suffered in the cause in my younger days.
I believe, too, that newspapers ought to believe in the journalistic relevance of moral principle. I am sad that this has become a cliché, but it remains true. A newspaper, I firmly believe, must make its news and, equally, its editorials, a part of the tangible issues of the daily lives of its readers. It may thereby make some angry. It may lose some circulation. But even those who are made angry will know that what they read touched their lives.
In a speech of some months before the campaign or conventions, Adlai Stevenson gave an anatomy lesson on politics. “All politics,” he said, “is made up of many things – economic pressures, personal ambitions, the desire to exercise power, the overriding issues of national need and aspiration. But if it is nothing more, it is without roots. It is built on shifting, changing sands of emotion and interest. When challenged it can give no account of itself. When threatened, it is in danger of collapse.”
All this is the stuff of our labors – the reporting of it, the commenting on it. And, also with us, if it is nothing more, it is without roots.
After all, our story is man’s.
I trust it isn’t yet trite to quote from “Dr. Zhivago,” in which an old philosopher says:
“Rome was a flea market of borrowed goods and conquered peoples, a bargain basement on two floors, earth and heaven, a mass of filth convoluted into a triple knot, as an intestinal obstruction. Dacians, Herculeans, Seythians, Sarmatisams, Hyperboreans, heavy wheels without spokes, eyes sunk in fat, sodomy, double chins, illiterate emperors, fish fed on the flesh of learned slaves…
“And then, into this tasteless heap of gold and marble, He came, light and clothed in an aura, emphatically human, deliberately provincial, Galilean, and at that moment gods and nations ceased to be and man came into being…man, the carpenter, man the plowman, man the shepherd, with his flock of sheep at sunset, man who does not sound in the least proud, man thankfully celebrated in all the cradle songs of mothers and in all the picture galleries of the world over…”
Newspapers, I believe, must never forget they serve man – not a state – but man and his Western civilization and the moral ethics of it – those papers which are interested enough will survive.
And in the process will appear those whose values are as firm as those of Elijah Lovejoy, whom we honor tonight.