A Good Ol' Boy Sitting on the Federal Bench

Lincoln Caplan, an attorney, writes frequently about legal matters for the New Yorker.

William Brevard Hand is a model of a maverick judge. Few people outside the South ever heard of him until he drew recent attention for banning some books from use in Alabama public schools because they teach "a godless religion" called "secular humanism."

But since he was appointed to the federal bench by Richard M. Nixon in 1971, Hand has made decisions that deserve scrutiny. In favor of school prayer, against affirmative action, scornful of suits to gain voting rights for blacks, against busing as a remedy for segregated schools--his accumulated judgments fall in line with major items on the Reagan agenda. But his promotion of the results he approved in social policy and disregard for the kind of restraint practiced by traditional conservative judges--let alone his questionable methods of judging--also mark him as an activist with scant respect for orthodox views about the law.

In a 1974 opinion against affirmative action, Hand scolded civil-rights lawyers for "stirring up of controversy" in bringing such suits. Since 1978, he has delayed the inevitable in voting-rights cases centered on Alabama counties where half the population old enough to vote is black and no black has ever been elected to countywide office. To Hand, blacks have failed to be elected not because of gerrymandering or block voting by whites for whites, but simply because of "black apathy." An appeals court strongly disagreed and ordered him to establish new voting districts that would give blacks a chance to elect a black representative. In a later decision, Hand named the districts required by the appeals court as Sowetos and declared that he would enforce the higher court's ruling only under protest.

After a landmark decision by the Supreme Court in 1971 that Hand's hometown of Mobile had to desegregate its public schools in order to comply with the Constitution, the judge found his own reasons to avoid enforcing the ruling. Under his supervision, segregation in Mobile schools grew even worse after the Supreme Court order. Hand eventually followed a fox-in-the-chicken-coop tactic: To oversee Mobile's desegregation he chose the academic Lino Graglia, whose book, "Disaster by Decree: The Supreme Court Decisions on Race and the Schools," argued that the Mobile landmark and every other decision calling for school desegregation were wrong as law and unnecessary as policy.

In 1983, Judge Hand independently set aside generations of Supreme Court precedent and ruled that he wouldn't consider the legality of an Alabama law permitting spoken prayer in the public schools, on the theory that the First Amendment--barring government from the establishment of religion--doesn't apply to the states. Even some staunch conservatives in the Reagan Administration, such as then-Solicitor General Rex Lee, joined outside observers in referring to this decision as "lawlessness." Paul Bator, a respected conservative scholar who was then deputy solicitor general and is now a professor at the University of Chicago Law School, also criticized the ruling: "The principle that district court judges must obey the Supreme Court is one that every lawyer ought to be clear on."

When the Supreme Court struck down the state statute that Hand refused to consider, it reemphasized that the First Amendment's prohibition against establishment of religion applies to laws made by the states, and Justice John Paul Stevens castigated Hand for his "remarkable conclusion" to the contrary. The court ordered Hand to enjoin the state prayer law. He did that, but didn't stop there. Still looking for victory, he turned the old suit into a new one, created the "religion" of secular humanism, and, according to the American Civil Liberties Union, became the first federal judge ever to ban books from public schools. (A federal appeals court on Friday agreed to hear the case and temporarily set Hand's ruling aside.)

Hand describes himself as "a voice crying in the wilderness," but in Washington, a cadre backed by President Reagan and led by Atty. Gen. Edwin Meese III and Assistant Atty. Gen. William Bradford Reynolds has lately been promoting the same radical legal ideas and the same social agenda. Judging from the Administration's support for his rulings and its approval of his appointment as one of 17 judges to join a new Committee on the Bicentennial of the Constitution, Hand is a Reagan favorite, usually mislabeled a conservative.

Conservatives say they believe in a limited role for federal judges: Judges should adhere to conservative practices, like following precedent and settling only the legal issues the court must deal with to resolve a case. Unlike true conservatives, New Right lawyers contend that judges should be activist, like Hand, to undo what they view as the mistakes of the past generation's liberal judges on agenda items, and more.

"Most federal judges don't like to be overturned by the Supreme Court but Hand doesn't give a damn about that," Forrest McDonald, a University of Alabama historian, explained. "He's a firm believer in constitutionalism, and he has the courage to try turning the government back to embrace it." When Hand disagrees with what he calls "some pronouncement from a shrouded Olympus" (an appeals court or Supreme Court holding), he rules as he thinks "justice" requires--even if it contradicts established and freshly affirmed precedent. Instead of waiting for litigants to present narrow controversies, he constructs cases in order to rule on issues that interest him.

The judge doesn't hide his purposes. Frank McRight, a prominent lawyer in Mobile, says Hand has a "well-deserved" local reputation for being an "honest jurist." Jefferson Beauregard Sessions II, the U.S. attorney in Mobile whose insensitivity to racial issues led the Senate to reject his nomination for a judgeship in 1986, praises Hand for lack of ambiguity in his rulings. So do liberal lawyers; their success in appealing his judgments give Hand what Justice Department attorneys call the worst record of any judge in the country for being overturned on civil-rights decisions.

The judge sometimes obscures his methods, however. A Mobile civil-rights lawyer, J.U. Blacksher, claimed that "most of his big opinions are ghostwritten to a large degree." Other Alabama lawyers said the judge's practice has regularly been to identify the lawyer in a case before him whose views match his own--then simply adopt the lawyer's brief as the court's opinion. The Court of Appeals for the 11th Circuit took the unusual step of asking Hand to correct this habit, and cautioned him publicly against "too much reliance upon the parties in the formulation of an opinion." Alabama lawyers weren't surprised. To distinguish him from Learned Hand, the venerated judge (and no relation) who dominated the U.S. Court of Appeals for the Second Circuit for many years, they have long called their contemporary the "Unlearned Hand."

Hand's courtroom methods are also hardly conservative, report lawyers who practice before him. Rose Sanders is a well-known civil-rights attorney, president of a black group called the Alabama Lawyers Assn. Some years ago, Hand called her "notorious" during a case in his court. She protested and told him he was notorious as well. The judge demanded that Sanders submit a brief explaining why she felt "persecuted" by him.

Hand often interrupts witnesses, not to ask that they clarify a point, but to make one of his own. A black minister testified in a voting-rights case that bad memories of beatings by whites on the courthouse steps during the 1960s sometimes made it hard for blacks to register at the same courthouse in Selma. Implying that blacks had no difficulty in going up those steps when they really had to, Hand asked, "Where do they get food stamps?"

The judge sometimes wanders from the bench during testimony and startles lawyers as they attempt to concentrate on a witness. After giving Justice Department lawyer Gerald Hebert a rough time in a voting-rights case, Hand came down and whispered, "You know, Jerry, I just love to jerk your chain."

Hand's judicial resume lists his memberships in the Mystic Societies (they celebrate Mardi Gras) and the Country Club of Mobile, and, along with fishing and farming, it includes golf among his hobbies. One Alabama lawyer said "He's too well-to-do to be a good ol' boy." But Hand acts the part of good ol' boy as a judge. "The first time I met Judge Hand," the lawyer said, "I walked into his office and he was drinking a Coca-Cola and he let out a great big belch." In one case, the lawyer said, "the judge called in some attorneys for a settlement conference. He left them to talk and a while later he called in. 'I just finished nine holes. How're you all doin' on settlement?' " When the judge learned that the lawyers hadn't yet reached an agreement, he said, "Awright, you all keep workin' and I'll play another nine holes."

Decorous or not, Hand's "crazy redneck" act, as one of his admirers calls it, has a serious and important goal. The last Alabama judge to attract national attention was a Republican, Frank Johnson, a Dwight D. Eisenhower appointee. Conservatives criticized Johnson's "judicial activism" in the 1960s and 1970s when he took on Gov. George Wallace and ordered Alabama to desegregate its schools, improve its prisons and mental hospitals and otherwise dismantle what Johnson considered to be the state's racial caste system. While describing himself as a legal conservative, Johnson thought he had to choose between defending the plantation customs of the South and upholding the law. He chose the law and he opened doors. Brevard Hand sees the Old South being destroyed by the modern society that Johnson felt impelled to serve; as his record and his supporters indicate, Hand feels no legal constraint against trying to close those doors.

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