Vol. 7 No. 5 (May 1997) pp. 195-198.

Unrepentent Leftist: A Lawyer's Memoir by Victor Rabinowitz. Urbana, IL: University of Illinois Press, 1996. 346 pp. Cloth $29.95

Reviewed by Stuart A. Scheingold, Department of Political Science, The University of Washington

Victor Rabinowitz is what I have referred to elsewhere as a "first generation" left-activist cause lawyer (Scheingold, forthcoming). That means that he began to practice in the 1930s and was, therefore, in on the very earliest stages of left wing political lawyering in the U.S. As a result, his political and professional lives have been a roller coaster ride of highs and lows. Unlike the second generation that emerged in the heady days of the civil rights and anti-war struggles, it was often difficult for the Rabinowitz generation in the early days of their careers to make a decent living. Later on, because of their sympathies and associations with the Communist Party, they got caught in the post W.W. II anti-Communist frenzy. Then, there were the struggles between their old left and the New Left as second generation left-activists reinvigorated and destabilized the National Lawyers Guild.

Given Rabinowitz's impeccable credentials and the relative dearth of attention to left-activist cause lawyering, especially in its early days, this book is a valuable, albeit a very personal, document. It is certainly no substitute for a well researched historical analysis but can be seen, along with a similar book by Arthur Kinoy (1983), as a kind of a down payment on that much needed project. There are probably no surprises here, but Rabinowitz's amiable, reflective, and fair minded memoir provides informative first hand accounts of watershed events in the development of left-legal activism in the United States. I will focus on the McCarthy period and on the National Lawyers Guild and neglect other aspects of the book that may well be of equal or greater interest to other readers--including, for example, Rabinowitz's representation of Castro's Cuba and Allende's Chile in nationalization litigation.

Understandably much of the book is taken up with Rabinowitz's run-ins with McCarthy era anti-Communism, and his prominence meant that he was involved in celebrated constitutional controversies of that era. As the lawyer for the American Communications Association, he was counsel in American Communications v. Doud. He also represented Steve Nelson during a portion of the proceedings that ended in the U.S. Supreme Court as Pennsylvania vs. Nelson. By his own estimate, Rabinowitz represented about 150 witnesses called before Congressional investigating committees, including Alger Hiss.

Rabinowitz offers an interesting account of the legal, political and personal minefields that witnesses and their attorneys had to negotiate. The 5th amendment was a reliable way to avoid prosecution but ordinarily led to losing one's job. To challenge a committee's jurisdiction or to plead the First Amendment was to make a bold political statement--amounting in effect to civil disobedience, according to Rabinowitz. But it was legally risky--normally resulting in prosecution, conviction in the trial court and an extended and uncertain battle for reversal on appeal. Rabinowitz provides an insider's view of how these trade-offs figured into the calculations of lawyers, clients and the Communist Party. For his part, Rabinowitz yearned to use these cases to make a political statement and is critical of the Communist Party's failure to develop a political strategy. He believed that attacking the jurisdiction of the committees made good sense legally and politically. Nonetheless, he felt compelled to advise his clients that the 5th Amendment was the only certain way to stay out of legal trouble.

Given his "unrepentant" left-wing politics and the burdens under which he and his clients labored, it is understandable that Rabinowitz would be tough on the institutions and adversaries that he confronted.

It takes only a few pages to describe the court battles over the authority of the congressional investigating committees . . . but it took sixteen long years . . . to play them out. The devastation wrought by the committees during this period was overwhelming, and I have tried to suggest its scope. The courts were of no help whatsoever (p. 130). Similarly, in discussing his defense of New York city school teachers dismissed because of their unwillingness to sign loyalty oaths, he notes that they endured five years of suspension "although every judicial decision had been in their favor" (p. 150). Nor is he reluctant to nail those for whom he has little respect. Anti-Communists on both the reformist left and the reactionary right take a steady beating in this book. Of Judge Richard Owen who presided during his representation of Alger Hiss, Rabinowitz says: "In our appeal to the court in Hiss's case, we weren't arguing before an average judge (which is bad enough), but to an unusually dull and obtuse one" (p. 146). He is even more contemptuous of Roy Cohn: "Of all the evil men I've encountered in six decades of law practice, Roy Cohn was the most vicious" (p. 112).

But this is not a polemic. Rabinowitz is generous with those adversaries whom he admires. When Rabinowitz represented Cuba in the important Sabbatino case, one of the opposing attorneys was John Laylin of Covington and Burling. Referring to Laylin's influential amicus brief in that case, Rabinowitz has this to say: "He was articulate, deft, experienced, and learned, and he exemplified the very best of this country's corporate lawyers" (p. 221). Even Senator McCarthy gets his due for "his usual geniality . . . in personal relations" (p. 110). Similarly, his ostensible allies on the left do not escape unscathed. The Communist Party and the Soviet Union come in for some tough minded criticism as do his younger New Left colleagues in the National Lawyers Guild.

At its core, this book is about Rabinowitz's constant and conscientious effort to reconcile his two vocations: left-wing politics and the law. His lack of patience with those who were unwilling to engage in the hard work of developing and defending principles emerges most revealingly in a (for me) too short chapter on the ebb and flow of the National Lawyers Guild from its inception in the 1930s through the 1970s. The guild was for Rabinowitz, as for most other left-activist lawyers in the United States, the one place where their political and professional lives came together, but the guild was also in continuous turmoil. In the 1930s, there was a struggle for control between New Deal anti-Communist lawyers and more radical elements that were sympathetic to and/or associated with the Community Party. Then in the 1950s, the guild was targeted by the anti-Communist right. By the end of the McCarthy period, the guild was seemingly on its last legs--only to be revitalized and significantly transformed by the civil rights and anti-war movements.

For Rabinowitz, however, this revitalization, welcome though it was, came as something of a mixed blessing. Civil rights activism was to his way of thinking devoid "of any political approach--of any theoretical basis" (p. 176): "I feared that the guild was forgetting other critical issues . . . We in New York, on the other hand, had developed a full program ranging from social security legislation to concern about nuclear war and the growing East-West tensions on the international front" (p. 178). The anti-war activists were even more disconcerting. Their New Left politics were much too vague and eclectic for Rabinowitz. Speaking of the 1968 guild convention he says:

For much of the convention, the students and other younger lawyers, all part of the New Left, met on the Santa Monica beach in caucus "plotting" ways of carrying out their program, a program, incidentally, which was pretty murky and expressed itself chiefly in slogans: "The Guild is the legal arm of the Movement" was the most popular. Some of us, reacting like lawyers, would have liked a definition of the "Movement," but it turned out to be one of those indefinable concepts (like obscenity or poetry) that we were all supposed to recognize when we met it (p. 187). These young Turks were also suspect as lawyers. Speaking for himself and others in his generation, Rabinowitz complains that this new generation were: undisciplined, unlawyerlike, and disorderly . . . sloppy in their dress, and their language would have been unprintable in family newspapers in 1968. They were boisterous and lacked the flannel-suit solemnity many of us saw as typifying a lawyer. We also had doubts as whether they knew or cared much about the law; certainly they didn't act the way we expected lawyers to act (pp. 186-187). As his "flannel suit solemnity" comment suggests, Rabinowitz was not altogether comfortable with his conventional lawyer's sensibilities. At the same time, he was profoundly wary of the unruly and iconoclastic second generation, who seemed contemptuous of legal institutions and professional ideals and were also without clearly articulated political principles and programs.

Despite his misgivings, Rabinowitz played a crucial role in the transfer of power in the guild from the first to the second generation. Was Rabinowitz simply bowing to the inevitable? Perhaps, but I think not. Deeply committed to his ideals and yet aware of his limitations, Rabinowitz somehow manages to convey a sense of distance despite the unapologetically partisan nature of this account. This is a worthwhile and well written book by a decent, thoughtful and committed man. Students interested in the topic would find it accessible and informative--even inspiring. No doubt there are other sides to this story, and I hope that someone will undertake the task of systematically researching and telling them while it is still possible to get first hand accounts from at least some of principal protagonists.

References

Kinoy, Arthur (1983) RIGHTS ON TRIAL : THE ODYSSEY OF A PEOPLE'S LAWYER. Cambridge, Mass.: Harvard University Press

Scheingold, Stuart (forthcoming) "The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle" in Austin Sarat and Stuart Scheingold, eds., CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFES-SIONAL RESPONSIBILITIES. New York: Oxford University Press.

Cases

AMERICAN COMMUNICATIONS ASSOCIATION V. DOUDS, 339 U.S. 382 (1950)

BANCO NATIONAL V. SABBATINO, 376 U.S. 398 (1964)

PENNSYLVANIA V. NELSON, 350 U.S. 497 (1956)