Vol. 2 No. 6 (June, 1992) pp. 89-90

WILLIAM WAYNE JUSTICE: A JUDICIAL BIOGRAPHY by Frank R. Kemerer. Austin: University of Texas Press, 1991. 481 pp.

Reviewed by Gerald N. Rosenberg, Department of Political Science and School of Law, University of Chicago.

Judicial biographies offer a rare opportunity to peer into the lives of judges, among our most secretive public officials. To most Americans, judges deal in a mysterious process, complete with peculiar forms of language, behavior and dress. They work in libraries and studies, out of the public eye. They are seldom interviewed by reporters. Most Americans know little of what lies behind those black robes.

In this readable and interesting judicial biography, Kemerer illuminates the life of Judge William Wayne Justice, a federal district court judge for the Eastern District of Texas. And what better judge to study than one named Justice, one who compiled a record studded with liberal decisions. From statewide school desegregation (UNITED STATES V. TEXAS) to public school education of undocumented aliens (DOE V. PLYER) to statewide prison reform (RUIZ V. ESTELLE), Justice wrote opinions requiring wholesale revamping of state institutions. While not all of his decisions were upheld or implemented, they made a name for Justice.

The book is divided into two parts. The first part, roughly 100 pages, contains four chapters examining Judge Justice's background, from his childhood through his appointment to the bench. The second part, nearly 300 pages, covers 11 areas of the law and discusses in depth many of Justice's decisions. A short concluding chapters speaks to his judicial philosophy. The re- search is based largely on extensive interviews with lawyers, former clerks, and the judge himself.

The book has many strengths. In the second part, Kemerer goes to great lengths to provide the background to many of Justice's important decisions. The reader learns of the inhumane conditions in many state-run institutions, of the pervasiveness of race-based segregation throughout the state. Interviews with lawyers and other key players in the cases bring them fully to life. Throughout the book, Kemerer provides colorful descriptions of law- yers in small-town Texas life, and highlights the political nature of the judiciary. Perhaps the most poignant example is that while most of his neighbors used the Sears catalog in their outhouses, William Wayne Justice, the child of a lawyer, was privileged to rely on discarded advance sheets of the SOUTHWESTERN REPORTER! (p. 7) The reader can't help but wonder if this early experience influenced the future judge's view of precedent.

More seriously, Kemerer does a good job of illuminating the political nature of the judiciary. For example, he shows how Justice secured his appointment to the bench through his political connections. He was a close friend of U.S. Senator Ralph Yarborough, a leader of the liberal wing of the Texas Democratic party. He also was an active supporter of Lyndon Johnson, deftly managing to maintain loyalty to both. While Justice was a competent lawyer, Kemerer shows how he used these connections to secure the appointment. Similarly, Kemerer repeatedly stresses how lawyers forum-shopped, both seeking to litigate before Justice and avoiding his court at all costs. Rather than being above or removed from politics, Justice and his court were right in the middle of it.

Biographies are at their best when they show how life experiences influence the decisions that make their subject worthy of study, when they illuminate where beliefs and motivations originate and how they shape and mold actions. Kemerer implicitly raises several intriguing questions about the motivations of Judge Justice. For example, Justice was evidently enamored of the Eastern, liberal establishment, particularly Harvard, where he was a regular participant in the trial advocacy program. He and his wife sent their daughter to boarding school and to an elite Eastern college, and from August 1977 to September 1991, 69% of his clerks came from Harvard, Michigan, Stanford and Yale law schools while only 11% came from

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Texas law schools (compared to 100% from Texas law schools from July 1968 through July 1977). One of his great joys, he told Kemerer, was sitting by designation on the U.S. Court of Appeals for the D.C. Circuit, and he always hoped to be elevated to the U.S. Circuit Court for the Fifth Circuit. But Kemerer does not explore the possible relevance of this character trait to Justice's judicial career. Was Justice writing opinions to please what he perceived to be the liberal establishment? Was he selecting clerks from the leading law schools (particularly Harvard) to catch the attention of their faculties? Was he looking outside of Texas for the support that was lacking within the state? Similarly, Justice, both as a lawyer and as a U.S. Attorney, essentially accepted racial segregation as a way of life. Yet, as a judge, he became a crusader for civil rights. What brought about the change? Did he finally feel free to act as he believed? Was he playing to the liberal establishment? Questions like these, about the relevance of his background and motivations to his decisions, are not explored.

Perhaps the greatest challenge to biographers is to treat their subjects with balance. Without such balance, the reader sees only one side of the subject, strengths and not weaknesses. Like many before him, Kemerer lacks critical distance. Judge Justice may have often been courageous, but he wasn't always right, and his opponents weren't always mean-spirited, narrow-minded, small- thinking judges, politicians, and officials, substituting their ideology and biases for Justice's noble sentiments. While one can admire Judge Justice, it does seem to stretch credulity to suggest that he was "perhaps the single most influential agent for change in twentieth-century Texas history." (p. 3) Kemerer gives the reader the sense that even Justice himself would scoff at such a notion.

Overall, then, Kemerer provides the academic reader with the background to some of Justice's most important decisions, and the general reader with some sense of the life of a well-known federal judge. For both those who believe that liberal activist judges are motivated solely by arrogance and an attitude that they know better than ordinary folks, and for those who believe that justice is distinct from politics, Kemerer provides a refreshing counterpoint.