BERNARD WEISBERG, UNITED STATES MAGISTRATE

George Anastaplo

[A French nobleman at a gathering in Paris], for Want of Something else to do, asks me [as the American Minister to France] many Questions about America in a Manner which shows he cares little for the Information. By Way of giving him some adequate Idea of our People, when he mentioned the Necessity of Fleets and Armies to secure us against Invasion, I tell him that Nothing would be more difficult than to subdue a Nation, every Individual of which in the Pride of Freedom thinks himself equal to a King, and if Sir you should look down on him would say: I am a Man, are you any Thing more?─“All this is very well [the nobleman replies] but there must be a Difference of Ranks, and I should say to one of these People: You, Sir, who are equal to a King, make me a Pair of Shoes.” –Our Citizens, Sir [Morris explains] have a Manner of thinking peculiar to themselves. This Shoemaker would reply: “Sir, I am very glad of the Opportunity to make you a pair of Shoes. It is my Duty to make Shoes and I love to do my Duty. Does your King do his?” –This manner of thinking and speaking however is too masculine for the Climate I am now in.”

-Gouverneur Morris, Diary
(March 1, 1789)

Prologue

            Should not we be reminded, whenever anyone is chosen for judicial office, of the mode of selection practiced in Scotland as related by Benjamin Franklin for the entertainment of his fellow delegates in the Constitutional Convention of 1787? He reported that among the Scotch “the nomination proceeded from the lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves.” Dr. Franklin then counseled the Convention so to arrange our institutions that it was always in “the interest of the electors to make the best choice.”

I.

            It was in this spirit of enlightened self-interest that I replied some weeks ago to a telephone call from someone who identified himself as with the Federal Bureau of Investigation and who announced that he had questions to ask about Bernard Weisberg who was being considered for appointment to the post of United States Magistrate in the Northern District of Illinois. My immediate response was, “This is certainly good news. You should not let him get away.” My delight upon hearing this news has been matched by that of many of you here who know Bernie Weisberg and who know as well of the enhanced duties of the magistrates in this district. The enthusiasm in the legal community which has greeted his appointment reflects a general awareness of his character and career, both of which I presume to say something about during the ten minutes allotted to me on this happy occasion.

II.

            Bernard Weisberg’s career has been such, for some three decades now (since his graduation cum laude from the University of Chicago Law School in 1952 and his tour of duty as a Law Clerk with a Justice of Supreme Court of the United States), that he has developed sensible opinions about, and has been constructively engaged in, most of the great struggles which have helped shape this community since the Second World War. Many of you here today know of his service in various capacities: in the American Civil Liberties Union, where he has been a reliable moderate; in the Illinois Constitutional Convention, where he was a hardworking delegate (and to which he was elected after an exciting campaign directed, in large part, by his ever-resourceful wife); in a distinguished law firm, where he was permitted to do considerable pro bono work; in the Chicago Council of Lawyers, where he (again along with his wife as well as with others, of course) helped established a respected bar association; and in the Chicago and American Bar Associations and other legal organizations, where he has worked with distinction on many committees.

III.

            My most intimate experience of him was during the two years that he served, a decade ago, as the Chairman of the Governor’s Commission on Individual Liberty and Personal Privacy here in Illinois. I have never seen anyone lead so effectively such a body of quite independent-minded men and women as he did then. His aptitude, which makes him my personal candidate as the next Chief Justice of the United States (I mention this, Judge McGarr, so that he will be sure to be treated with the proper respect by his temporary superiors on this Court) –his aptitude as a much-respected leader was in part due to the nice combination in him of both a relaxed highmindedness and a passion for detail. That passion for detail may be seen in the care with which the bills proposed by the Privacy Commission are obviously put together and annotated, a care which had behind it long hours of meticulous staff effort under his immediate direction. I could, as a member of the Commission staff, enjoy watching in him a first-class lawyer at work. And so I can appreciate, on the basis of those extended drafting sessions, why a longtime secretary of his could say when asked to characterize him, “He is very particular.”

The highmindedness I have referred to complements his professional craftsmanship. That Highmindedness may be glimpsed in such passages as the one with which the Final Report of the Privacy Commission closes, where it is said,

Finally, it is recommended by this Commission that there be established at least once a decade, a temporary privacy commission composed for the most part of private citizens. Each such commission should survey enduring as well as emerging privacy problems in this State; suggest appropriate legislation; call public attention to coarsening “cultural” developments threatening those human sensibilities upon which an abiding respect for privacy rests; define privacy-related matters in need of extended study; and otherwise assess, correct and continue the work of its predecessor privacy commissions.

It is a rare champion of privacy concerns who would counsel calling public attention to coarsening “cultural” developments (and here “cultural” is put in quotation marks in the Final Report) –coarsening “cultural” developments threatening those human sensibilities upon which rests an abiding respect for privacy─and for various of our other rights and privileges as well, I might here add.

But then, the remarkably effective leadership exhibited by our Privacy Commission Chairman itself drew upon his own instinctive regard for human sensibilities. This regard is reflected in what he said, in the cover letter transmitting the Final Report to the Governor who had established the Commission: “I would like to express my personal thanks to the members of the [Privacy] Commission, a hardworking and conscientious group, all of whom served without compensation. They brought varied experience, great patience and considerable good will to our efforts. As a result, our deliberations were consistently rewarding.”

IV.

            It is revealing that one of the passages that particularly appealed to Mr. Weisberg, when he had occasion last year to review the records of the Constitutional Convention of 1787, was the good-natured acknowledgement by a South Carolina delegate, in the closing weeks of the Convetion, that he had had “prejudices against the [Northern] States before he came [to Philadelphia], but . . . that he had found [their delegates] as liberal and candid as any men whatever.”

The willingness to be receptive to, and to acknowledge, the good will of others (exhibited during his Privacy Commission chairmanship) has been evident as well in discussion I have heard Bernard Weisberg conduct with law students about the workings of the Illinois Constitutional Convention in which he served. He can always be counted upon to give those who differed from him their due, humanely trying to appreciate the merits of their positions, even as he has been a tough and able advocate of his own. He has been zealous in discouraging the facile opinion, all too common today among politicians, lawyers and would-be lawyers (as well as among intellectuals)—the crippling, if not corrupting, opinion that men are moved ultimately by their self-interest, narrowly conceived. His principled openmindedness means that he can always be counted upon to approach controversies from a fresh perspective, even when he defers to the old way. All this is enlivened by a sense of humor very much informed by a bemused awareness of the odd corners of human life. It is certainly difficult to imagine anyone as humane as he is providing, as all too many respectable lawyers do provide, legal services to prosperous scoundrels, year in and year out, without ever attempting to change the ways of such clients for the better.

V.

            Thus, we can learn from Bernard Weisberg’s career that an insistence upon looking for the good in others not only testifies to the best in oneself but also helps to suppress the worst in the world at large. Consider (by way of contrast) how revealing have been the recent allegations out of Moscow about the drugs and madness-inducing methods to which a supposed KGB defector was subjected in this country—allegations which inadvertently expose much more what goes on in the Soviet Union than what goes on here. And consider also how revealing has been the inability of the current South African government to see anything but foreign conspiracy and Communist agitation in the persistent efforts there to secure racial justice. Far more healthy is the Weisberg approach, which is that of the fair-minded judge who, in giving others their due, assures one and all of his own confident integrity and his professional competence. We should be reminded, by the illustrations from abroad that I have just used, of the grave risks run by systematically resorting to blatantly political tests for potential judges. Integrity and competence, not “ideological” partisanship, are what we should insist upon—and these we do have, in good measure, in the new Magistrate for this District, an officer whose virtues enhance the stature of this office for his successors.

VI.

            I have not attempted to explain how Bernard Weisberg became as good as many have long recognized him to be. No doubt his family life (in the home of immigrant parents), a quiet but firm religious faith, his love of music, and his early training contributed much to shaping the man we are privileged to know. About his upbringing I can say little, since it has long been one curious feature of American life, with its remarkable mobility and the opportunities made possible by that mobility, that we must take and assess people much as we find them, cut off as we all too often are from each other’s youth. But I do have some notion, and I believe a reliable notion, of how he has managed to remain as good as he is:   it is in some measure due to his wide range of serious reading, which has helped keep him very much alive mentally and hence morally. I would be surprised to learn that anyone else in his generation of lawyers in this city is better read than he is. Particularly illuminating is his charming 1982 essay, which I recommend to all of you, an essay whose very title combines the instructive highmindedness and the useful shrewdness to which I have referred an essay entitled, “Reading to Your Children:  One Family’s Experience and Some Practical Suggestions For Those Who Would Like To Try It.” The essay opens with this sentence, “Twelve years ago I began regular reading aloud to our children, two boys then four and five years old.” An impressive array of the authors read is then indicated, followed by the observation, “Our reading has been a useful weapon against television, a way of sharing discoveries about history and human nature, but above all, a shared pleasure.” Further on in the essay is some advice to other parents which is so characteristic of the man that it bears repeating here:  “How to read aloud is the first practical question. No one should be deterred because he lacks acting or public speaking experience. Reading a story told by someone else should be easy as taking a walk, something which anyone can do comfortably in his own style and manner…. Here, as elsewhere, my advice is to do what comes comfortably. Follow your own preference. I believe you will discover that a loving relationship with the audience assures an appreciative and forgiving response, whatever style you adopt.”

VII.

            The future of liberal democracy, as well as of a vital bar and bench among us, may depend upon our ability to make proper use of the great resources of the Western tradition, especially as that tradition is developed in the greatest books available to us. Deeply rooted in that tradition is a standard which, on the one hand, raises our ethical and political aspirations as high as they can reasonably go and, on the other hand, makes it clear how limited may be the possibilities for living up to those aspirations.

It is a high standard that we look to, then, in recognizing Bernard Weisberg as very much the thoughtful patriot, a citizen who is both willing to serve, and able to serve with distinction, in whatever post he is assigned. Indeed, such men, serving conscientiously wherever they chance to find themselves, assure us of the soundness of the dedication of this country to equality—since we can observe through them that the same talents may be needed, and are cheerfully made available, to do whatever has to be done in all proper efforts on behalf of the community, whether public or private, whether high or low. It is this willingness—the modest willingness of the best to serve wherever they are needed—which helps make things work here as well as they do.

Epilogue

            I close them not only with congratulations for your new Magistrate and for the family and the associates who have made his dedicated career possible but congratulations also, perhaps even more, for the Judges of this District who know a good man when they see him and have now made him one of their own. Here, indeed, we can say with Benjamin Franklin that it has been “the interest of the electors to make the best choice”–something which is very much in the interest as well (the enlightened self-interest as well) of the man inducted today, a man who can be depended upon to cherish still another opportunity to devote his considerable talents to the service of his grateful country.

United States Courthouse
Chicago, Illinois
November 12, 1985

Presiding at this Induction Ceremony was the Honorable Frank J. McGarr, Chief Judge, United States District Court, Northern District of Illinois.

George Anastaplo is Professor of Law, Loyola University of Chicago; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago.

____________________

[Bernard Weisberg served as United States Magistrate in the Northern District of Illinois until his death in 1994. It did not need to be mentioned, during this 1985 occasion, that he had contributed to an amicus brief in the course of the litigation that culminated in In re Anastaplo, 366 U.S. 82 (1961).]

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