Rights and Remedies

Louisiana Law Review Volume 64 | Number 3 Spring 2004 Rights and Remedies Marsha S. Berzon Repository Citation Marsha S. Berzon, Rights and Remedies, 64 La. L. Rev. (2004) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol64/iss3/6 This Article is brought to you for free and open access by the Law Reviews and Journals at DigitalCommons @ LSU Law Center. It has been accepted for inclusion in Louisiana Law Review by an authorized administrator of DigitalCommons @ LSU Law Center. For more information, please contact . Rights and Remedies Marsha S. Berzon* Coming here to participate in a lecture series named in honor of Judge Alvin and Janice Rubin is, for me, an occasion of great personal significance. In the summer of 1968, my husband Stephen and I arrived for Stephen's clerkship with Alvin Rubin, then a district judge in New Orleans. Judge and Mrs. Rubin invited us to stay with them while we went apartment hunting, and continued throughout the year to be surrogate parents, inviting us to share holiday events and other special occasions with their family. I would visit chambers occasionally and meet Judge Rubin and Stephen for lunch. I was at the time twenty-three years old. Alvin Rubin was the first federal judge-indeed, the first judge-I had ever met. I had not yet gone to law school, nor had I any plan to do so. I certainly had no thought that I would ever follow Alvin Rubin into the federal judiciary. But life takes strange turns, and subliminal influences often take over when one is least expecting them. I spent that year quietly observing Judge Rubin's combination of wit and wisdom; of enormous intelligence, broad knowledge, and good common sense; of hard work and preservation of time for friends and family; and of a profound commitment to both individualized justice and the development of sound, well-articulated legal doctrine. Most of all, I recognized that a man of great depth with an unwavering commitment to making the world a better place had found fulfillment in the law. By the end of the year, both Stephen and I had absorbed a vision of a life worth living, as well as a sense that personal attributes and devotion, not family connections or social status, would determine whether one attained such a life. So I have no doubt that when, a year later, I decided to apply to law school, Judge Rubin's model informed my choice. That he was a rare lawyer, and an even rarer judge, was something I learned only over the following years. When I was nominated to the federal judiciary, Judge Rubin had, sadly, already passed away. I remember invoking his name at the first Copyright 2004, by LOUISIANA LAW REVIEW. Judge, United States Court of Appeals for the Ninth Circuit. I would like to thank my law clerks, Jennifer Chang, Winter King, Ajay Krishnan, Christopher Rickerd, and Scott Shuchart, for invaluable aid in preparing this speech, and my husband Stephen Berzon for his typically excellent "last read." Janice, Michael, and David Rubin and their families were gracious hosts during our visit to Louisiana. Finally, the administration, faculty, and students of the Law Center, an attentive and inquisitive audience, helped me think through these ideas a bit more. * 520 LOUISIANA LA W REVIEW [Vol. 64 of my two lengthy confirmation hearings-the atmosphere surrounding judicial confirmation hearings was very different in 1998 and 1999 from what it had been in 1977, the year Judge Rubin was confirmed to the old Fifth Circuit-as the ideal to which I aspired as a judge, which indeed he was and is. While awaiting confirmation, I thought often that I would so have liked to be able to sit down with JudgeRubin if I ever reached the bench to ask him for a roadmap, a guidebook, to the role and life of ajudge. Then, when the Senate finally voted and I indeed became ajudge, a box of educational materials arrived from the Federal Judicial Center to prepare me for my new endeavor. In the box was a severalyears-old tape recording of a conversation among four federal court of appeals judges chosen for their wisdom and wide respect. Among those judges, thank goodness but not surprisingly, was Alvin Rubin. So I had my tutorial from Judge Rubin after all, about how to prepare for argument, how to choose and work with law clerks, and how to undertake the myriad other daily tasks that absorb judges as they try both to get through the caseload and to provide litigants with the careful attention they are due. As I embarked on my life as a judge four years ago, I drew on the practical advice Judge Rubin imparted in that taped conversation. But I also thought often about a very specific and critically important lesson concerning the legal system that Judge Rubin taught me in his courtroom in 1969. Before Judge Rubin that year was the school desegregation case in Tangipahoa Parish. I remember Judge Rubin looking down from the bench, drawing on his considerable ability to appear both formidable and folksy at the same time, saying to the lawyers and parents before him something like: "Brown v. Board of Education was decided in 1954. My son Michael was just starting school at the time. Michael has now gone off to college, yet in Tangipahoa Parish black and white children still are not going to school together. So a black child who was five or six when Michael was would have gone entirely through school by now, always in segregated schools. That is not how our legal system works, and I am not going to allow it to continue." And he issued an injunction to ensure that it would not,' while the other Louisiana district judges that year faced with similar cases failed to do so--and were promptly reversed by the Fifth Circuit, while Judge Rubin was affirmed.2 The African-American children in Tangipahoa Parish had a right to attend integrated schools as soon as Brown was decided. So a 1. See Moore v. Tangipahoa Parish Sch. Bd., 304 F. Supp. 244 (E.D. La. 1969). 2. Hall v. St. Helena Parish Sch. Bd., 417 F.2d 801, 812 (5th Cir. 1969). 2004] MARSHA S BERZON group of lawyers brought suit on their behalf under a post-Civil War statute, 42 U.S.C. § 1983, that allows civil suits for "redress" against persons "who, under color of any statute, ordinance, regulation, custom, or usage, of any State ...subject[] ... any citizen.., to the deprivation of any rights, privileges or immunities secured by the Constitution and laws..." The problem Judge Rubin wrestled with that day in 1969 and sought to resolve is that a declaration of federal rights, whether by Congress or by a court, is most often insufficient as a practical matter, as it was in the 1950s and 1960s with regard to school desegregation, to bring about the change in people's lives full recognition of those rights would entail. Without means to oblige implementation of legal rights by those who would otherwise violate them-without the "redress" that Section 1983 contemplates-the declaration by courts or legislatures of those rights remains aspirat (...truncated)