To the Editor:

. . . It is the thesis of my book, Unequal Justice, which Joseph W. Bishop, Jr., reviewed in August, that justice in the United States has been distributed according to race, ethnicity, and wealth, rather than need; that the primary responsibility for injustice rests with a professional elite which structures legal education, bar admissions, ethics, discipline, and legal services to reflect the social, economic, and political preferences of its members and their clients; and that anti-Semitism, racism, xenophobia, and sexism pervade the legal profession at its elite levels.

I mention my thesis only because Mr. Bishop, so evidently discomforted by the evidence that sustains it, prefers to ignore or distort it. He offers an illuminating, if depressing, example of what thinking like a lawyer can mean. He suggests that the thesis is familiar but outrageous; untrue but perhaps true. From that jumble emerges the sleazy accusation that the abundant evidence of professional anti-Semitism proves only that Unequal Justice is racist, an example of double-think that last appeared in the resolution branding Zionism as racism. In a sneering ad hominem Mr. Bishop confesses to suspicions about my departure from law school, a low blow even by his ankle-high standards.

Readers of Unequal Justice will quickly discover that Mr. Bishop’s suspicions have as little to do with the book as does his review. His observations on legal education are frivolous; on law-school admissions and law-firm hiring, ill-informed; on the cold war, reminiscent of American Bar Association leaders, circa 1950. A few corrections, on the single point of anti-Semitism, must suffice:

1. Anti-Semitism in the Brandeis nomination controversy was hardly covert or inconsequential. I urge Mr. Bishop to read the correspondence of William Howard Taft, former President of the United States and the ABA, member of the Yale Law faculty, and future Chief Justice, referring to Brandeis’s Zionism as his metaphorical circumcision. Taft was one of six former ABA presidents to attest to Brandeis’s defective ethics and “character”—euphemisms for his Jewishness.
2. Although Harlan Stone’s attitudes were relatively benign within elite circles, he shared the genteel prejudice of his group. But Mr. Bishop, like the Columbia faculty members who became hysterical after Stone’s own words were accurately quoted in the New York Times review of Unequal Justice, prefers to believe that Stone did not mean what he said. Evidence from Stone’s own writings, covering a ten-year period, contradicts Mr. Bishop’s wishful thinking. I do believe Mr. Bishop’s statements that some of Stone’s law clerks (like other people’s best friends) were Jews.
3. My references to the prejudices of an “Anglo-Saxon professional elite,” which clearly stung Mr. Bishop, are accurate descriptions of historical fact. I am sorry that the evidence offends him, but I am even sorrier that so many minority-group lawyers were wounded by discrimination. Rather than confront disagreeable evidence, Mr. Bishop maliciously distorts my account. For example, although I described William D. Guthrie as “waspish,” Mr. Bishop neatly altered the form to “Waspish.” Guthrie, a Catholic, was waspish, not Waspish—a distinction with a difference.

The real professional problem, however, goes far deeper than Messrs. Taft, Stone, Guthrie, or even Bishop—who merely exemplify it. It is the systemic pattern of racial and ethnic discrimination built into professional elitism, and the smug indifference to it of Mr. Bishop and other bar Bourbons, that still contribute to unequal justice.

Jerold S. Auerbach
Wellesley College
Wellesley, Massachusetts

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To the Editor:

Joseph W. Bishop, Jr., . . . misses the point when he fails to perceive the pervasive distrust of lawyers and the legal establishment. Perhaps he should examine the results of a Gallup Poll (New York Times, August 22, 1976) assessing “the honesty and ethical standards of people in different fields.” Only 25 per cent of lawyers rated high, as contrasted with 55 per cent of medical doctors and 44 per cent of college teachers. He might note an article in the same issue of the Times dealing with “Lawyers and Ethics: How Much Help for the Poor?” Erwin Griswold, former dean of the Harvard Law School and former U.S. Solicitor General, was asked, “Why shouldn’t lawyers be required to do at least some free work?” His response was incredible: “Should carpenters build houses free?” All hail professionalism!

Mr. Bishop should also consult “The Talk of the Town” in the New Yorker (August 22, 1976) where it was reported that some 40,000 New York City lawyers, in response to a special appeal for legal aid for the poor, managed to volunteer free services equivalent to that of one full-time lawyer, along with contributions of $3,000, insufficient to pay for a solicitation mailed to members of the Association of the Bar of the City of New York. John Mitchell and cohorts probably misplaced more than that in $100 bills in their recently well-publicized pro bono activities.

Mr. Bishop’s ad hominem attack on Jerold S. Auerbach cannot obfuscate the failure of law students to take away from their grandiosely titled courses some moral lessons and a sense of concern for the individual and society as a whole. How else can one explain the failure of the courts to penalize an Attorney General such as Richard Kleindienst, Harvard Law degree and all, for debasing his high office?

Mr. Auerbach’s fervent disquisition has its failings, both in content and style, but it points a finger at the disinterested stance the legal establishment takes toward equal access to legal services and equal treatment by the law and lawyers. If Mr. Bishop would provide facts and statistics to refute Mr. Auerbach’s damning indictment of the legal system instead of offering impassioned tendentious defenses on isolated issues, his arguments could be taken more seriously.

[Dr.] Harold P. Lazar
Chicago, Illinois

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Joseph W. Bishop, Jr., writes:

Jerold S. Auerbach’s letter is about what I expected, having read his book. That is to say, it is intemperate, inaccurate, frequently irrelevant, and full of accusations and assertions which are unsupported by the evidence, if any. There is perhaps a trifle less personal abuse than I had anticipated, although still plenty. In any case, I do not intend to reply in kind.

In the first place, I started off by stating unambiguously that some of his major charges against the legal profession had in the past been true and that some others still are. I have in fact made some of them myself, in COMMENTARY and elsewhere, although with more care and qualification, and less self-righteous rhetoric. I gave him his full due and maybe more. My criticism was essentially that he had “marred his argument by suggestion of the false, suppression of the true, distortion of his adversaries’ arguments, and the frequent use of half-truth and sometimes simple untruth.” Indeed, he makes no effort to refute (except by calling me names) most of my serious criticisms.

Now for a few observations on his allegations. Manifesting an uncharacteristic concern for the Queensberry Rules, he describes as a “low blow” my suspicion that outraged idealism was not his only reason for leaving Columbia Law School. That suspicion was, as I said, based on doubt that anyone capable of the cavalier contempt for fact and the shoddy reasoning (particularly well exemplified by his attack on Alexander M. Bickel) which mark Unequal Justice would be likely to do well in the study of law. If that suspicion is unjust, Mr. Auerbach can easily refute it by producing his record at Columbia.

My “observations on legal education are frivolous.” I have been in the law-professor business for twenty years; while my ideas may be wrong, they are hardly frivolous. On law-school admissions, I am “ill-informed.” I have been a member of the Yale Law School Admissions Committee about a dozen times and am now serving for the third time as chairman. In the latter capacity I have had a good deal to do with the Law School Admissions Council, an organization of law-school admissions officers, and participated in its panels and workshops. I suspect (another of my low suspicions) that I have rather more information on the subject than Mr. Auerbach. I didn’t say anything about the cold war, so I don’t know how Mr. Auerbach can make such confident assertions about my views—not that ignorance would deter him from slinging a handful of mud.

I find his “evidence” on William Howard Taft’s alleged anti-Semitism much less than convincing. Although anti-Zionism has often served as a code word for anti-Semitism, it is quite possible to oppose Zionism, as some Jews do, without being anti-Semitic. Criticisms of Brandeis’s ethics and character, made by many people who were above suspicion of anti-Semitism by anyone except Mr. Auerbach, were far more likely to have been founded on his connection with United Shoe Machinery (about which Mr. Auerbach still has nothing to say) than on his Jewishness. The extent of Mr. Auerbach’s knowledge of Taft is shown by his book’s description of Taft as a “corporation lawyer.” In fact, Taft never practiced corporation law; as a judge, he had no doubt a good working knowledge of the subject but is not remembered for any landmark opinions.

Since Mr. Auerbach has chosen to reiterate his accusation that Chief Justice Stone was an anti-Semite, albeit “genteel,” let us see whether his evidence is so conclusive that the Columbia faculty’s resentment of the charge was “hysterical.” (Mr. Auerbach seems to believe that any disagreement with him, if not simply malicious, is produced by hysteria.) Mr. Auerbach’s evidence, in its entirety, consists of the following extracts from a very long letter, written by Stone when he was dean of Columbia Law School: “The influx to the bar of greater numbers of the unfit,” “racial tendencies toward study by memorization,” and “a mind almost Oriental in its fidelity to the minutiae of the subject without regard to any controlling rule or reason.” The theme of the letter was criticism of bar examiners for setting questions which required just such qualities of the examinees. There is no mention of Jews, but, as I said in my review, the three phrases can be read as being aimed at Jewish law students, if one is searching for such evidence. It is at least as likely, however, that Stone had in mind other ethnic groups, including Wasps. Memorization by rote is a bad tradition in many systems of education, including that of England. See, for example, such diverse works as Hughes’s Tom Brown’s Schooldays, Dickens’s Hard Times, Orwell’s Such, Such Were the Joys, and Laurie Lee’s Cider with Rosie. Even if the three phrases are given the worst possible construction, they are not much to set against the evidence of Harlan Stone’s whole career.

I said explicitly that many of Mr. Auerbach’s denigrations of Wasps were justified (though exaggerated) “descriptions of historical fact,” but a few kind words for the many Wasps who weren’t guilty would also have been accurate descriptions of historical fact. There are no such kind words. The capitalization of “waspish,” as applied to William D. Guthrie, was an error, which I regret. But does Mr. Auerbach really expect us to believe that all he meant his readers to understand in the context was that Mr. Guthrie was quick to take offense, or possessed of a stinging wit? At best, his adjective is a clumsy double-entendre. I think it significant that he nowhere in his book mentioned that Guthrie, although white and reasonably “Anglo-Saxon” (he was of English and Scottish descent), was Catholic; it would not have suited his thesis to disclose that a very successful corporation lawyer, a conservative, a president of the New York State and City Bar Associations, happened not to be Protestant.

Finally, Mr. Auerbach repeats his charge that a “systemic pattern of racial and ethnic discrimination [is] built into professional elitism.” And I repeat that this was generally so twenty or thirty years ago, but is simply untrue today. I don’t suppose that even Mr. Auerbach would claim that it is true of law schools. As for the big firms, let us look at a very typical Wall Street firm, Cravath, Swaine & Moore, which was the target of Mr. Auerbach’s piece on the Op Ed page of the New York Times. According to Martindale-Hubbell’s Law Directory, there are among its forty-five active and three retired partners (judging by surnames alone, for no other information is available) six who are probably and four who are possibly Jewish; five who are Celtic Irish (and probably Catholic); and two who are Slavic. The percentages are almost certainly higher among the firm’s associates, hired within the last eight or ten years.

I apologize for devoting so many words to anything as superficial as Mr. Auerbach’s letter. Unfortunately, reasoned refutation always requires more space than unsupported accusation.

Harold P. Lazar rather misses the point of my review. Far be it from me to contend that lawyers are Nature’s Noblemen or that they are as a group any more honest and ethical than doctors or accountants or other professionals. They often (like doctors) charge too much for their services; as is often not the case with doctors, their overcharges fall on their clients rather than the taxpayers. I said explicitly that “the legal profession has done a poor job of getting its services to people in the lower- and middle-income brackets at prices those people can afford.” We have made more progress in providing adequate medical services to everyone than we have made with legal services, although I doubt that the organized medical profession deserves much of the credit. I think myself that the most hopeful remedies are something like Medicare and Medicaid (learning, we may hope, from the exposure of the abuses that have marked those programs), plus increased use of para-professionals in the less complex aspects of the practice of law. The medical profession, I freely concede, has some great advantages over the legal. No improvement in legal education can ever raise a lawyer’s competence so far above that of a lawyer of two or three centuries ago as the competence of a modern doctor, no matter how small his natural gifts, is above that of Harvey and Jenner.