Tom and Ramsey Clark

The following is a series of questions posed by Ronald Collins on the occasion of the publication of Alexander Wohl’s Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy (University Press of Kansas, April 2013).

Welcome, Alex.  Thank you for taking the time to participate in this Question and Answer exchange for our readers.  And congratulations on the publication of your first book. 

Question:

Why a dual biography? Let’s start with Tom Clark. 

Answer:

Tom Clark has always intrigued me because he is one of the least studied of the modern Justices, especially when it comes to the members of the Warren Court.  Moreover, I was taken by the fact that he cannot easily be typecast, either as a judicial activist or someone who strictly embraces judicial restraint. To quote Justice Douglas, in some respects Tom Clark truly “evolved” during his tenure on the Court.  He wrote some of the most liberal opinions as well as some of the most conservative decisions and dissents during the seventeen years he sat on the bench.  At times he seemed to transcend the divide that often exemplified the Court during the era in which he served.

As I expanded my study of his career beyond his years as a sitting Justice – to his prior work as Harry Truman’s attorney general and even earlier as a Justice Department attorney – the contradictions grew more pronounced, particularly as they related to questions involving the balancing of individual rights and government power. This included his work as a young DOJ attorney helping to enforce the relocation of Japanese Americans to internment camps and then, as attorney general, in enforcing many of the anti-communist policies of the early Cold War, and on the other side of the equation, in his work promoting government action on civil rights.

Question:

So how did you move from there to Ramsey Clark?

Answer:

What captured me and helped turn a more conventional biography of one prominent legal figure into a dual biography of two important public figures, as well as a compelling father-son story, was Tom Clark’s somewhat remarkable decision in 1967 to step down (at a relatively young age) from the Supreme Court.  Why did he do it?  He wanted his son Ramsey, then LBJ’s acting attorney general, to be appointed attorney general without having to face any potential conflicts of interest.  It was remarkable not only because there was no guarantee at that point that Johnson would run again, or if he did that he would win.

As I began to study both men’s lives, it turned out to be an even more fascinating story because their lives and work ran along an ideological continuum, from Tom Clark’s early career in which he worked on and initiated a number of conservative policies, to his evolution as Supreme Court Justice who more frequently embraced many of the underlying egalitarian principles of the Warren Court, to Ramsey’s full-throated idealism and liberalism as a an assistant attorney general and then attorney general working on civil rights and other issues, and finally as a private attorney moving even further to the farthest reaches on the spectrum of legal activism. But even though the two were in some ways ideological bookends, with contrasting approaches and personalities, they also shared many underlying views about justice and the rule of law.

Question:

So what we have is a somewhat constitutionally restrained father and a son who was far more ideologically animated?

Answer:

Well yes, but they were both principled in their own ways, and sometimes in the same way.  I also think the range of constitutional interpretation they demonstrated, particularly on issues involving the balance of individual rights and government power, reveals how much individual personality can affect the actions of public officials. Tom Clark was a gregarious extrovert who easily mixed policy with politics. Ramsey was both more introspective and generally rejected politics as part of his job. Combined with his idealism, this may have made him a less effective government attorney in some ways, but a more consistent and more zealous advocate.

I wanted to show where these views came from and how they evolved through each man’s public service.  I also wanted to demonstrate how the values and understandings that led to this were transferred or shared between the two.  I thought that would be a more interesting way to tell a story than a traditional biography.

Question:

What are the most important parts or themes of the book?

Answer:

One theme at the center of this book and both men’s lives and work is the continuing challenge of balancing government power and individual rights. Both Tom and Ramsey Clark played an important role in this area in each of their government positions. Later, as a private attorney, Ramsey continued to do so, albeit from a different perspective.

Tom Clark first faced this balancing as a Justice Department lawyer chosen to help lead the enforcement of the president’s World War II order to relocate Japanese Americans from the West Coast (eventually into internment camps). Later, as attorney general, he initiated and enforced some of the most repressive policies relating to individual rights of association as part of Truman’s anti-communist policies affecting government employees. But AG Tom Clark also developed numerous policies to promote civil rights, helping to lay the groundwork for the civil rights revolution of the 1960s.

As a Supreme Court Justice, Clark continued to balance these competing interests, maintaining a strong pro-government position on national security issues even as he sometimes advanced constitutional protections of individual rights in certain areas, including criminal procedure. For instance, his opinion in Mapp v. Ohio (1961) was based in part on his view that for police to enforce the law properly they must follow the law and respect the constitutional protections.  And though he dissented in Miranda v. Arizona (1966), he later clarified that he agreed with the underlying principle involved.

Question:

How did Ramsey Clark strike the legal balance?   

Answer:

Ramsey faced the balancing issue from the opposite end of the spectrum. His basic default was in favor of protection of individual rights; he strenuously opposed actions and policies that impinged on personal justices or fairness, ranging from the death penalty to wiretapping.  And yet, as a government official he, too, faced criticism, both for what he did do and what he did not do. He was condemned by conservatives in Congress (as well as some Democrats) for his failure to prosecute the black activist Stokely Carmichael for anti-war and other protests. But Ramsey was also criticized by liberals for his prosecution of anti-war activist Dr. Benjamin Spock and other members of the “Boston Five” for their anti-Vietnam activities. In Ramsey’s view these actions were consistent; he enforced the law where there was evidence it had been broken and did not where there was none.

Question:

In his later years Ramsey moved even more to the left.  True?

Answer:

Yes.  Once he shed the constraints of government work, as a private attorney Ramsey became more publicly outspoken on issues ranging from crime and punishment to opposition to the Vietnam War. He increasingly took on left-leaning clients prosecuted by the U.S. government – from the Indian activist Leonard Peltier to police reformist Frank Serpico to the controversial political activist Lyndon LaRouche.  But he drew more criticism as he increasingly took on causes and clients who not only challenged U.S. law and prosecutions, but actively opposed U.S. foreign policy – for example, his defense of Saddam Hussein.  How these different approaches by each man evolved and how each influenced the other is an important theme running through the book.

Question:

What are some other themes of the book?

Answer:

A second important theme is the combined role the two men played in the advancement of civil rights. Remarkably, both Tom and Ramsey Clark grew up in a world of racial intolerance. Tom Clark’s grandfather was a Confederate Army officer, his father was an outspoken racist, and he was raised in a segregated environment, as was his son. And yet, the two men became strong advocates for civil rights, both within the government and outside of it.

As Harry Truman’s attorney general, Tom Clark helped devise and enforce what was to that point an unprecedented strategy of federal involvement in civil rights enforcement – replete with the use of amicus briefs, federal officials to investigate and support state police, and the creation of the first federal commission on civil rights. As a Supreme Court Justice Tom Clark played a vital role on issues of racial justice, not only by voting with the majority in cases like Sweatt v. Painter (1950) and Brown v. Board of Education (1954), but also by voting with liberals in a number of criminal justices cases involving race, and he played an influential role in part because of his Texas background.

Question:

What about Ramsey?

Answer:

Ramsey, who joined the Kennedy Justice Department as assistant attorney general for the Lands Division, quickly became a key player in the department’s civil rights activities, intimately involved with desegregation efforts at the Universities of Mississippi and Alabama, with the federal government’s involvement in the freedom rides, the lunch counter sit-ins, and the March to Selma and, later in the Johnson administration, working with Martin Luther King, Jr. and other civil rights leaders.  Ramsey’s later work as a defense attorney took this kind of advocacy even further, as he defended clients on the basis of both claimed persecution for their ideas as well as their race and association.

Question:

In your book you also talk about how the two Clarks sometimes worked in unison.  Can you say a few words about that?

Answer:

Perhaps most fascinating in this regard was how they occasionally, albeit informally, “tag-teamed” in their work. When, for instance, Ramsey was working as a DOJ official to enforce civil rights or the rights of protesters for civil rights in the south, Tom Clark was writing decisions on the Supreme Court enforcing those rights, in cases ranging from Burton v. Wilmington Parking Authority (1961), the state action case, to the sit-in cases.  Similarly, when as attorney general Ramsey argued a case involving housing discrimination, with the Justice Department acting as amicus in Jones v. Alfred Mayer (1968), he was emulating his father’s filing of an amicus brief twenty years earlier in the groundbreaking case of Shelley v. Kraemer (1948).  Another overlapping issue was wiretapping. I should point out, however, that while they were very close personally during these years, they almost never talked about work.

Question:

What more can you tell us about this dual biography?

Answer:

A lot of the Clarks’ work and a focus of the book is how each man dealt with questions of crime and law enforcement, particularly issues like wiretapping and bugging as well as the role of J. Edgar Hoover and the FBI.  As a former local prosecutor and then attorney general, Tom Clark was generally deferential to police power.  As attorney general he was befriended by Hoover and, like most other AGs, was steamrolled by him.  In his early years as a Supreme Court Justice, he maintained this approach on law enforcement, especially when it came to the government’s power to investigate so-called Communist activities.

Over time, however, Tom Clark’s views evolved. For example, he grew to accept and embrace certain limits on the police and became more sensitive to police and FBI abuses of power. His last decision as a Justice was his majority opinion in Berger v. New York (1967), an important case overturning a conviction based on an unlawful wiretapping.

Question:

Can you say something about how Ramsey Clark viewed the enterprise of government wire-tapping?

Answer:

Ramsey Clark hated government wiretapping. He felt it was “a destroyer of integrity.” In one of his first acts as attorney general, Ramsey enacted a policy of no government wiretapping, which was embraced by LBJ in the face of Republican congressional criticism.  Also, unlike any attorney general before him, Ramsey Clark sharply limited Hoover’s powers, forcing him to document and clarify various requests for wiretapping.  Predictably, Hoover fought back.

After he became a private citizen, Ramsey wrote a best-selling book titled Crime in America: Observations on its Nature, Causes, Prevention and Control (1970).  Among other ideas, it laid out the case for increased financial support and better training for law enforcement officials. It was an idea his father increasingly advocated after he retired from the Supreme Court.

Question:

Who was the more important of the two Clarks, Tom or Ramsey?

Answer:

I think you would have to say Tom Clark if for no other reason than the sheer breadth of his government activity and involvement with key policies – as an assistant district attorney, as a trial attorney at the DOJ, as head of the antitrust and criminal law divisions, as attorney general, as Supreme Court Justice for more than seventeen years, and finally as a senior judge and a leader on judicial administration issues, including the famous Clark Commission on judicial ethics.

But Ramsey Clark played a significant role on many key national policies as well, from his early involvement with environmental and Indian rights issues, to his contributions to civil rights enforcement.  Concerning the latter, Ramsey played key roles related to the 1964 Civil Rights act, the 1965 Voting Rights Act, and the 1968 Civil Rights and Fair Housing Acts, as well as the passage of gun control laws.  He was almost as influential as a former government official, drawing attention to various issues including discrimination, war and peace, the death penalty, and government overreaching and abuses of power.

 

Alexander Wohl, a former Supreme Court Judicial Fellow and Supreme Court correspondent for the San Francisco Chronicle, is an adjunct professor at American University’s Washington College of Law.

Posted in Book Reviews, Featured

Recommended Citation: Ron Collins, Ask the author: Alex Wohl on Tom and Ramsey Clark and the Constitution, SCOTUSblog (May. 2, 2013, 12:31 PM), http://www.scotusblog.com/2013/05/ask-the-author-alex-wohl-on-tom-and-ramsey-clark-and-the-constitution/