Obituary: A. Leon Higginbotham

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The Independent Culture
A. LEON HIGGINBOTHAM was one of the most distinguished American jurists of his generation. His life as a lawyer was devoted to advancing the cause of civil rights and racial integration. He personified that cohort of African Americans who came of age in the United States in the 1950s and 1960s when the Supreme Court decision in the case of Brown v Board of Education was revolutionising race relations.

Indeed, he was an outstanding example of the whole purpose of integration, which was to ensure that a black man or woman with the right stuff could enjoy the kind of career talented white Americans took for granted. Born in modest circumstances in Trenton, New Jersey in 1928, he went to segregated schools and won a place in a predominantly white college at Purdue, Indiana, in 1944.

Here he experienced the kind of crude anti-black discrimination routine in all parts of the United States at that time. Nevertheless, he graduated BA from Antioch in 1949 and took a law degree at Yale Law School, where he won academic awards, in 1952. Few black students at that time graduated from such prestigious institutions.

Seeking work as a lawyer in Philadelphia, he ran into serious discrimination for the first time. When one of the city's top law firms asked him to attend an interview, it was clear they had assumed that a Yale graduate named Higginbotham would be white. The lawyer who interviewed him agreed his credentials were impressive, but then added, "Of course, there's nothing I can do for you."

The "of course" was what hurt and what characterised race relations in the United States on the eve of the Supreme Court's landmark decision in the Brown case, which was published in May 1954. This decision, in which the Court voted 9-0, declared segregated schools unconstitutional, undermining segregation in every section and region of America, not just in education in the South, but in housing, employment, politics and the law right across the nation

It took another 20 years for segregation to end, years of legal and political struggle historians call the civil rights movement, and in this struggle lawyers like Higginbotham played a crucial part. In 1954 he joined the Philadelphia law firm of Norris, Green, Harris & Higginbotham, became the city's assistant district attorney and then president of the Philadelphia chapter of the National Association for the Advancement of Colored People, which had led the struggle to undermine the legal basis of segregation in America since the 1920s.

In 1964, President John Kennedy appointed him as the first black lawyer to serve on the Federal Communications Commission. He was 36. Three years later, Kennedy's successor, Lyndon Johnson, considered putting him on the United States Supreme Court in 1967 before naming Thurgood Marshall as the first African American to serve on the highest court in the nation.

Higginbotham remained an unambiguous champion of integration, which had to be enforced by law, but when Richard Nixon was president, between 1969 and 1975, such ideas fell out of favour. As a lawyer, teacher and legal scholar Higginbotham's influence continued to increase so that in 1977 President Jimmy Carter appointed him to the federal district court of appeals in Philadelphia, where he could rule on the constitutionality of civil cases.

This date was significant. In 1977-78 the US Supreme Court heard and decided the landmark case of Regents of the University of California v Bakka. In a divided and complicated decision the court ruled 5-4 that, contrary to the Brown decision 24 years earlier, educational discrimination in favour of blacks was still discrimination, and that preference systems or admission quotas to achieve racial balance on university courses were unconstitutional.

This saw the start of a generation in which positive discrimination, or affirmative action as it was known, came increasingly under attack, not least from black lawyers with conservative views, like Clarence Thomas, appointed by President Bush to the US Supreme Court to succeed Thurgood Marshall in 1991.

Two years earlier, Higginbotham had become chief judge on the Philadelphia appeals court and now enjoyed a wide reputation as scholar and lawyer. When Thomas's appointment was confirmed, after hearings in which it was alleged he had sexually harassed another black lawyer named Anita Hill, Higginbotham wrote a celebrated open letter to Thomas asking him to consider the historical roots from which American racism had grown, and emphasising the importance of law in defeating racial discrimination.

Justice Thomas was deaf to such arguments, as were increasing numbers of Americans. The era of universal acceptance of affirmative action was over. "I witnessed the birth of racial justice in the Supreme Court," Higginbotham explained in the New York Times magazine in January this year. "Now, after 45 years as a lawyer, judge and law professor, I sometimes feel as if I am watching justice die." This view was widely shared by other liberal Americans, whatever the colour of their skin.

In his last years, Higginbotham's fame as a legal scholar and tireless advocate of civil rights increased. Thus in 1995 he received the Presidential Medal of Freedom, America's highest civilian honour, while only two weeks before he died he was one of a handful of legal scholars asked to testify before the House Judiciary Committee about the proposed impeachment of President Clinton.

His advice, as in everything he said and wrote, was concise and clear. Even if Clinton had committed the perjury of which the Starr report indicted him, not all perjury was equal under the law. Lies about his relationship with Monica Lewinsky were more like lies to avoid a speeding ticket than lies about treason or bribery, which were impeachable offences. Perjury about something which was not even a misdemeanour could not justify removing a president from office. In the next few months we shall see whether Congress is as deaf to Leon Higginbotham's advice as Justice Thomas was to the advice he received in 1991.

Aloysius Leon Higginbotham, lawyer: born Trenton, New Jersey 25 February 1928; twice married (two sons, two daughters); died Boston, Massachusetts 14 December 1998.

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