WRONG QUESTION

[THE GEORGE ANASTAPLO BAR ADMISSION CONTROVERSY]

 By Cornelia Grumman

Chicago Tribune

September 26, 2000

 

The final constitutional law class of the semester at Loyola Law School is winding down, and George Anastaplo, dressed in his customary tweed jacket and scuffed New Balance sneakers, begins recounting a flight he took the weekend before on a friend’s private plane.

To anyone else, the trip might have been just what it was, a six-hour flight to and from New Orleans that was memorable only for the turbulence over Mississippi.

But Anastaplo, a small man seated in the well of a large classroom, ruminates on every detail of a cross-country trip at several thousand feet: how he asked which buttons to push if the pilot suddenly keeled over, how the ordered landscapes below would give way to unruly ones, how pilots communicated in relative anonymity with control tower personnel.  Soon these details form an elaborate, meandering metaphor about regional identity, regulation, self-determination, property and the underlying assumptions of democracy.

Anastaplo’s tale gains altitude in the final minutes of the class, as he imparts a few life lessons: Avoid specialization too early in your careers.  Allow principles to guide your decisions, even in the face of fear or ignorance.  Act prudently; behave honorably.  Buy a subscription to the symphony to enlarge your world.  Know Shakespeare.  Be a student all your life.

Understand that a flight can be more than just a flight.

Two untamed eyebrows move up and down with every bunny hop of his voice, suggesting all these old ideas are still fresh to him at age 74.

Around the classroom, among the bookbags and briefcases and Starbucks coffee cups, few are paying attention.  One woman fine-tunes footnotes on a paper for another class.  Another plays computer solitaire with a neighboring student.  Others wrestle with crosswords or sleep deprivation.

Anastaplo is a hero to many for withstanding the Cold War passions of the 1950s and defending a principle embodied in the U.S. Constitution at considerable personal cost, but here at Loyola Law School’s downtown campus he is a forgotten martyr.

As fine a law school as Loyola may be, George Anastaplo and his philosophical observations seem out of place here, where the emphasis is more on nuts-and-bolts law than scholarly inquiry.  The prolific author, eclectic scholar and devoted Socratic seems far better suited for the institution 10 miles south where he earned his undergraduate, law, and doctorate degrees.  But because of what happened 50 years ago this month amid the ugliness of McCarthyism and the ambitions of a school struggling to gain stature, and perhaps because of Anastaplo’s own principled stubbornness in the face of one simple question, the University of Chicago would not have him as a teacher.  And for the next 15 years, no other law school would either.

On Nov. 10, 1950, Anastaplo headed north from his Hyde Park apartment to the Chicago Bar Association offices at 29 LaSalle St. for a routine 10-minute interview that was to be the final formality before becoming an attorney.

The 25-year-old Anastaplo had completed his undergraduate degree in a single year at the University of Chicago, had been granted membership in Phi Beta Kappa, and in a month would finish at the top of his U. of C. Law School Class—a very smart class.  Classmates included Abner Mikva, who later became a congressman, federal judge, and chief counsel to President Clinton; Ramsey Clark, U.S. attorney general under Lyndon Johnson; and Patsy Mink, now a member of Congress from Hawaii.  Anastaplo had already aced the bar exam, was entertaining offers from large downtown law firms and had an infant at home with his wife, Sara.

Dressed in coat and tie, Anastaplo entered the room where the bar association’s Subcommittee on Character and Fitness, actually two lawyers sitting at a table, would toss a few softball questions at him and allow him to complete the certification process.  They were John E. Baker Jr. and Stephen A. Mitchell, who would later manage Gov. Adlai Stevenson’s 1952 presidential campaign.

After several routine questions, according to transcripts and Anastaplo’s recollection, the applicant was asked if he had an opinion as to whether members of the Communist Party should be eligible to practice law.

“I see no reason why membership in the Communist Party in itself should disqualify anyone from the practice of law,” he said.

Pointing out that Communists believe in revolution, the panelists asked Anastaplo whether he believed in a citizen’s right to overthrow the government.

“Well, don’t we all?” Anastaplo replied.  Citing the Revolutionary War, he argued that the right to resist tyranny is clearly embodied in the Declaration of Independence and long has been a fundamental tenet of American history and thought.  “Certainly, Americans believe in revolution.”

The answer jarred Baker. “If you’re going to talk that way, you’re going to have to tell us whether you are a member of the Communist Party,” he said.

Mitchell appeared to flinch at his colleague’s question, Anastaplo recalls, and there was a moment when Mitchell could have redirected the question. But that moment passed in silence. Anastaplo replied by politely challenging the propriety of a question about political affiliation being asked at all.

“Do you think that is a proper question to ask anyone, whether he is a member of the Communist Party?” he asked.

“Yes, we’re investigating your character. If you don’t tell us, we can’t certify you,” Baker replied.

Understood in the context of the times, the Communism question was a vital one to many Americans. Newspapers depicted a nation on the verge of hysteria, shrouded by an “evil shadow.” Headlines screamed news that 100 American scientists were Russian spies, Albert Einstein was a “red faker” and Communists were suspected of taking over the nation’s foreign policy and radio networks.

President Harry Truman was taking an increasingly hard line against “Communist aggression,” Korean War tensions escalated dramatically as Chinese troops entered the conflict in October, and the Julius and Ethel Rosenberg spy trial had just started. News that the Soviet Union had successfully detonated a nuclear bomb in September 1949 heightened fears of a nuclear war. Also that year, Sen. Joseph McCarthy of Wisconsin was just hitting his stride as the nation’s foremost Red-baiter.

But Anastaplo continued to stand his ground before his questioners, arguing that questions about political beliefs were unrelated to the subcommittee’s functions and violated his First Amendment rights not to disclose political associations. The two lawyers were unconvinced, and Anastaplo joined the miniscule fraction of applicants, mostly felons and perjurers, who each year are deemed unfit to practice law.

He challenged the finding in court and, in the numerous hearings that followed, quoted not only the Constitution but also the Declaration of Independence, Lincoln’s 1861 inaugural address, Thomas Aquinas and Daniel Webster. And with increasing exasperation, the full Committee on Character and Fitness asked Anastaplo if he was a member of the Communist Party, the Ku Klux Klan, the Silver Shirts of America, the Democratic or Republican Party, whether he subscribed to the Daily Worker or the Chicago Tribune, even if he believed in God.

“it was bullying, it was hazing,” he says. “When you go before them, you’ve got to be differential, you’ve got to kow-tow.”

There was a naiveté to his perseverance, as though he regarded the whole issue as an unfortunate misunderstanding on the part of the Committee, one easily resolved as soon as he could clearly explain himself. They would understand, of course they would.

“He expected too much from these lawyers,” says Laurence Berns, a professor at St. John’s College in Annapolis, Maryland, who was one of Anastaplo’s undergraduate classmates and now one of his closest friends. “He overestimated in general the intelligence and education of the bar. They weren’t up to understanding the kinds of arguments he was making.”

The late Malcolm P. Sharp, a highly respected University of Chicago law professor who became one of Anastaplo’s most ardent defenders, suggested that intellectual insecurity and the hazing rituals of elder tribesmen may have played a role in the Committee’s reaction to this brilliant young upstart. “Mr. Anastaplo’s position seems to have put the Subcommittee member into a frame of mine familiar to teachers who have faced students brighter than they,” Sharp wrote in the University’s student newspaper, the Maroon.

Anastaplo kept a lonely vigil.  Sharp was one of just a few defenders—among them University of Chicago professors Roscoe T. Steffen, Harry Kalven and Yves R. Simon, and Chicago attorney Angelo G. Geocaris.  Others, including law professors Walter J. Blum, Allison Dunham, Soia Mentschikoff and Sheldon Tefft, went out of their way to denounce him.  In February 1952 they distributed a memo among law school faculty advising that any bar applicant who refuses to answer questions regarding affiliation with the Communist Party should be refused admission.

The late Edward H. Levi, then Dean of the law school and later President of the University and Attorney General under Gerald Ford, sternly cautioned Anastaplo not to waste his career on such an overblown cause.  One day he buttonholed Sara Anastaplo walking down a law school hallway and pressured her to urge her husband to yield to the Committee’s wishes.  The encounter angers her to this day.

“I think he was genuinely concerned George was ruining his chances of being employed,” said Sara Anastaplo, who, as the child of a Texas oilman, betrays a faint Texas drawl.  “He wanted me to know what his status was, as though I were from outer space.”

Abner Mikva says Levi’s role “always made me kind of sad.  He felt the University and the law school were under attack, not just because of Anastaplo, but because of the mood that was going through the country at the time.  The University had been investigated by the state legislature, and he really felt he couldn’t use up chits on this law student who was probably misguided anyway.”

Anastaplo, incidentally, was not a Communist.  He was not a card-carrying member of anything, not even the public library.  “I’m not much of a joiner,” he says.

“It was perfectly obvious George was much too independent a mind and character to be affiliated with any party, and certainly not one as doctrinaire as the Communist Party,” says Mikva.

Anastaplo started driving a taxi for extra cash while working on his PhD with the University of Chicago’s Committee on Social Thought.  Nearly five years to the day after his first appearance before the lawyers subcommittee, he picked up a fare at the Sherman House in the Loop.  By the time the conversation reached Jackson and State, Anastaplo realized he was driving Joseph E. Daily, the very Illinois Supreme Court Justice who wrote the 1954 opinion denying his admission to the bar.

Anastaplo identified himself as the young man who had argued before him several years before.  Daily encouraged him to reapply for his law license, according to Anastaplo, who wrote down the conversation immediately afterward.

Daily: “You should answer and get admitted.  You’re not a Communist, are you?”

Anastaplo: “But, Mr. Daily, that is not the point.”

Daily: “No, it’s not the point.  But you should answer.”

Anastaplo: “It’s not a question of Communism.”

Daily: “Well, you should answer anyway.  No one ever thought you were a Communist.”

The late Edmund A. Stephan, later a prominent Chicago attorney, headed the Committee that conducted a rehearing on Anastaplo case.  In a 1983 radio interview, he said that he, too, had long been satisfied that Anastaplo was not a Communist.  Still, he said, Anastaplo should have answered the question.

“I thought it turned into kind of a silly exercise in the end,” Stephen said.  “We were jousting with each other and not dealing with the merits of the case.”

Mikva, who went on to have a career Anastaplo might have had, still harbors misgivings about how he and other classmates responded to the Subcommittee’s question about political beliefs.

“Yes, we all answered it,” Mikva says.  “I must say, when I look back George’s principles were absolutely correct and ours weren’t.  I’m not sure I would have wanted to end up paying the price he has paid.  But if a large number of us had refused to answer, maybe we would have gotten the law changed before it finally was.”

On April 24, 1961, the U.S. Supreme Court voted 5-4 to affirm the decision of the Illinois Supreme Court, which essentially declared that Anastaplo lacked the requisite character and fitness to practice law in Illinois because he impeded the Committee’s fact-finding process.

Justice Hugo Black, who early on called Anastaplo “too stubborn for his own good,” because absorbed by the case and eventually penned what became one of the most stirring and eloquent dissents.  Excerpts were read at Black’s funeral service in 1971:

“Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think.…This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us….We must not be afraid to be free.”

It was after the Supreme Court decision that Anastaplo concluded he had fought long enough.  He chose to drop his legal efforts and to allow his case, and his fate, to stand forever as a reminder of the Committee’s foolishness and McCarthyism’s excesses.  “And Justice Black’s opinion was a marvelous opinion,” he says.  “I figured I couldn’t to any better than that.”

In subsequent years, a variety of colleagues, bar associations and state legislators would petition on Anastaplo’s behalf to win him his law license, but he steadfastly refused to participate in these efforts.

What had passed was past, but he still was suffering the consequences.

Universities shunned him, noted Sister Candida Lunch, a friend and fellow PhD candidate, in an interview shortly before she died in September.  So, when she became President of Rosary College (now Dominican University) in River Forest, she hired him.  Under no other circumstances would Rosary have been able to attract a professor with such credentials, Lund says.

“The reason why most law schools wouldn’t deal with him was because he wasn’t admitted to the bar,” said Charles “Bud” Murdock, the former dean of Loyola Law School who hired Anastaplo in 1981 [upon the urging of Professor William T. Braithwaite].  “I don’t think so much that it was blacklisting, it was more the eliteness of law schools, that if you can’t be admitted to the bar then you’re not really a lawyer.”

Murdock and Lund agreed Anastaplo had an enormous influence on students.  One of them, Marijane Pacek, took every course Anastaplo had to offer at Rosary.  “He’s a true Aristotelian,” says Placek, who heads the homicide division of the Cook County public defender’s office.  “He’s a the man to go to get your ethical battery recharged, to correct your thinking.  He doesn’t realize how many lives he’s touched.”

And it was Anastaplo’s influence that prompted a millionaire commodities brokers to attend law school at age 63.  Francis D. Wolfe, Anastaplo’s pilot friend, now is an assistant public defender in Cook County domestic violence court.  “Yeats meant Anastaplo when he said, ‘Education is not about filling buckets, it’s about lighting fires,’” Wolfe says.

In an eerie replay of his earlier experience, in 1995 he and several other Loyola professors landed on a student-generated “list” of teachers who students charged demonstrated racial insensitivity in their classes.  Anastaplo’s offence was his use of the term “savages” in class, a reference to “the merciless Indian Savages” passage in the Declaration of Independence, as he was making a point about racial attitudes at the time of the nation’s founding.  While faculty and administration lay low, waiting for the students to graduate, Anastaplo spoke out about the incident in a series of memos and a law journal essay about racism on campuses.  Loyola’s response was to take away his typist [who was soon restored].

Anastaplo spent more than a dozen summers teaching modern and ancient texts at The Clearing in Door County, Wisconsin, an adult retreat for study of the arts, nature and literature.  For years, he would meet informally in the University of Chicago library with a small group of graduate students for more in-depth discussions of literature or philosophy.  He continues to teach the Great Books curriculum in the U. of C.’s Basic Program of Liberal Education for Adults.

“His relationship with the University of Chicago has always been a little odd,” said Northeastern Illinois University political science professor Larry Arnhart, who as a U. of C. graduate student participated in Anastaplo’s informal discussions in the stacks.

“His whole life has been centered around the University, but because of the kind of life he has led he has been on the fringes of it.  Being the sort of highly principled and, some would say, stubborn person that he is, has not made him acceptable with the powers that be in pursuing a more conventional academic career.  But as a consequence, I think he’s had more freedom to pursue the things that he wants to work on and to develop those arguments without the constraints of a normal academic career.”

Anastaplo always had been a teacher of moderation and self-discipline, but if his law license ordeal had any additional effect on his lifestyle, it was to make those virtues easy—by necessity.

Large mailing envelopes fetched from garbage cans usually serve for Anastaplo’s daily chores.  In blue ink, black ink and pencil, he sketches out upcoming talks, interesting quotes, thoughts and class notes.  “I use whatever I have,” he says.

His voluminous output of papers, law journal articles, books and other manuscripts is tapped out on his typewriter or written longhand, then a typist enters it into a computer before Anastaplo makes final pencil edits.  Someone gave him a computer once, but he used it only to hang Post-it Notes.  He works at a small desk in a tiny office so chaotically cluttered with books and stacks of papers that it’s hard to imagine there’s room for thought.

One recent Sunday, Anastaplo asked his granddaughter Rebecca, 22, to help him use the computer to search for something on-line.  She carefully walked him through the process, explaining such details as when to click once or to click twice, “really fast.” Anastaplo’s response suggested the effort was a lost cause: “Now how is a person supposed to learn how to click like that?”

Anastaplo doesn’t dine; he eats.  “It’s a can to be opened, cheese and crackers to be dealt with,” he says.  Restaurant dining strikes him as an unnecessary indulgence.  So do hotels.  On his plane trip to New Orleans to deliver a paper, his pilot friend stayed in a four-star hotel: Anastaplo checked into a convent.

He does not own a car.  He rides his bike from Hyde Park to Loyola’s downtown campus as long as there’s no snow or ice on the ground, or else he takes the bus.  He will drive a cab, but he will not hail one.

Once, according to Lund, Anastaplo decided his children should be reading more and he hid the TV in the attic for an entire year.

“Some people become so enamored with him they don’t realize that sometimes his positions are totally unbreakable,” Lund says.  “At some point, George said his children weren’t reading enough, and if it continued he would get rid of the television set.  And indeed it did continue, and he did hide the television set.  They looked everywhere for it.”

Born in 1925, Anastaplo lived in St. Louis with his Greek immigrant parents and two brothers before moving to the small Downstate Illinois town of Carterville, where he attended public schools and worked in his father’s restaurant.

He was never enough of an athlete to make a high school sports team, but he craved adventure.  He had read about the world and wanted to see it with his own eyes.  With war raging, he tried to enlist in the Army Air Corps but was rejected because he was underweight and had high blood pressure and an irregular heartbeat.  The 17-year old Anastaplo gorged himself on bananas to gain weight and pestered flight surgeons so persistently that finally, probably more out of annoyance than anything, they allowed him to enlist.  He ended up navigating bomber planes before he learned to drive a car.

Young and eager, Anastaplo was the first to volunteer for any assignment that would fly him to a part of the world he had not seen.  “Sure, why not?  This was not something you could do in Carterville,” he says.  He ended up flying [but not in combat] in every major theater of the war.  He calls the experience one of the best of his life, because it tested every aspect of character and left those who survived with a stong sense of purpose and confidence.

“Where before you were sort of reluctant or thought you might not be up to something physically, once you did this, you knew you could do whatever was required of you,” he says.

Anastaplo might have become a judge of some consequence.  He might have taught law among scholars at one of the nation’s top law schools.  He likely would have been a far wealthier man.

“There are lots of causes that I’m sure he would have taken on had he had a license—First Amendment cases, freedom of speech cases,” Mikva says.  “He would have been involved in the anti-Vietnam efforts.”

But Anastaplo expresses no bitterness about his life.  And he is quick to note that if he had won his law license, he might not have done other things.  He might not have had time to teach Shakespeare.  To write about the First Amendment or “Chance, Conscience and Prudence in Jane Austen’s Persuasion.”  To study “The legal and economic aspects of pollution.”  To expound at length about “What is a classic?” and “Baseball: The American Political Game.”  To contribute regular letters to the editor in local and national newspapers.  To suggest to friend and CTA Chief Frank Krusei, as he did recently, that he establish a “singing bus” along certain bus routes, equipped with a karaoke machine for the amusement of daily riders who opt to take it.  To design [two] stained-glass windows in Rockefeller Chapel on the University of Chicago campus.

“I’ve had a very busy life,” Anastaplo says.  “I’ve never really starved or been locked up.  I’ve had plenty to do to engage me.  A number of things would have been easier if I had been admitted to the bar, but whether they would have been as interesting, I don’t know.”

Observes Kruesi: “There are world-famous scholars who feel very much that he was a showboat, that he ruined the prospect of a very distinguished career in the practice of law.  What he traded that for was a very interesting career in academia.”

No special 50-year commemorations of Anastaplo’s case were planned for this month, though friends and colleagues held a modest gathering to celebrate his 75th birthday Nov. 7.

“He is largely forgotten in terms of this case, but his is not forgotten as a prolific writer,” says former Sen. Paul Simon.  “Every law professor ought to devote at least a few minutes during the course of the semester to talking about his case.”

Indeed, productivity has been Anastaplo’s best answer to being labeled “unfit” to practice law.

“The more productive I am, the more the whole thing looks silly,” he says.  “I didn’t just sort of drift off and go away.”

Numerous attempts have been made since 1961 to correct wrongs of the past and award Anastaplo his law license.  New petitions were filed on Anastaplo’s behalf by the Illinois Bar Association, a separate team of judges and prominent attorneys, even two members of the committee that once rejected him.  But each time, Anastaplo was told he would have to reapply.

He refused.

Most recently, with different faces on the Illinois Supreme Court, former Justice Seymour Simon approached the judges and suggested that they could do a good thing by finally admitting Anastaplo.  No applications necessary.

“Then it occurred to me that with all this history, I had better make sure if the Illinois Supreme Court offered him admission, he would accept it,” Simon says.  “Because it would be very embarrassing if the Supreme Court said, ‘OK, you could be admitted without applying,’ and then he said, ‘No, I won’t accept it.’’’  So Simon invited Anastaplo to lunch one day and asked whether he would accept admission should the Court grant it.

After 50 years of arguing his case, explaining his point and demonstrating good character and unassailable fitness, Anastaplo considered this new condition for admission to the bar.

And declined to respond.

____________________

[This article was published, as the cover story, in the Chicago Tribune Magazine, November 26, 2000, pp. 14-24 (with eight photographs). The bracketed material has been added by George Anastaplo in November 2011. George Anastaplo has most recently recapitulated his bar-admission career in an article in the Chicago Daily Law Bulletin (on the 50th anniversary of the United States Supreme Court Opinion in his Case). That April 2011 article has been posted on http://www.anastaplo.wordpress.com]

[Cornelia Grumman was awarded a Pulitzer Prize in 2003 for a series of Chicago Tribune articles on capital punishment.]

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