November 26, 2002

Dean Kathleen Sullivan
Stanford Law School
FAX (650) 723-4669

Dear Kathleen:

Thank you for sending me a copy of your letter to Lynne Stewart and for returning my telephone call while she was at the law school. Your letter has just reached me, as I have been traveling.

I venture to disagree with your formulation of the issue, and with your resolution of it.

A professor professes. An instructor instructs. A lecturer lectures. A mentor guides and share insights based on experience. (Although there is a French word like mentor with a distressingly different meaning.) I agree that when a law school bestows any of these titles it gives a kind of endorsement to the title-holder, but only as to qualities relevant to the activity for which that person is hired.

It is, however, quite wrong to think that such an endorsement extends, in your words, to "all that [the title-holder] stands for." This is an objection to form and to substance.

As to form: How do you know "all that [Lynne Stewart] stands for"? As I hear it, you had the New York Times' inaccurate article, and perhaps some other data, but nothing that would permit so sweeping a judgment. Lynne Stewart has been a social activist for more than three decades, most of that time also a hard-hitting lawyer who has taken on the most difficult and controversial cases. She has been rated as one of the top ten criminal defense lawyers in Manhattan, quite an honor to be put among all the testosterone-driven competitors in that league.

Looking at the constitutional cases, I think we have learned that overbroad and vague categories applied to alleged political thought and affiliation violate first amendment and due process precepts. Even in the context of lawyer discipline, notice and fair procedure are the watchwords. I think we both know the case law pretty well.

Now, on the issue of substance: Suppose a law professor or lawyer is a member of the Communist Party (an old issue, but at least there is some law about it), or takes the fifth amendment, or is gay, or refuses to serve in the military and goes to jail for that. Wouldn't you argue that if that person is a good teacher, fulfills all academic duties and publishes good scholarship, that the law school would do wrong by firing him or her? I thought that was one lesson of all those unconstitutional conditions cases that the Supreme Court decided. Yes, there has been some retreat from those cases, as with the Court's holding that innocent people can be kicked out of public housing because of offenses committed by their relatives; I hope we agree that this holding was wrong.

To get down to cases: John Abt was a great lawyer, and a Communist. I think Stanford students would have been well-served by learning from Charles Garry, Ben Margolis, John McTernan, and some of the other characters who enlivened California life. Old Vincent Hallinan would have been a heck of a mentor, although a federal jury found he cheated on his income tax, and a judge once sent him to jail for contempt. Maybe Harry Bridges could have told your colleagues a thing or two about labor relations. Caleb Foote, that gentle man who wrote so much good stuff about prisons, and who was tenured at Boalt when I was there, had been in prison as a conscientious objector, and had not repented. My undergraduate economics teaching assistant was Clinton Jencks, who later became a tenured professor; he had been convicted of a Taft-Hartley violation, though the conviction was later reversed.

Before I was appointed to represent Lynne Stewart, I knew her only by reputation. Knowing her better, I have learned to admire, among other qualities, her formidable abilities as a trial lawyer. I have been impressed by her ability to analyze what she does and how she does it. She is a great teacher.

In short, I think you made a mistake. As things turned out, perhaps no great harm was done. But in setting out the standard you said you used, I see the prospect of great mischief. I have been at the center of many controversies in my own career, some to do with hiring. And although I acknowledged to Chief Justice Burger during oral argument (in Lefkowitz v. Cunningham) that a Supreme Court Justice could hire and fire on any ground whatever, I did so only because that seemed to be the law and I could concede the point and still win. However, the firing I had experienced still rankled, even though it was done because the Court was under attack for having hired a leftist law clerk - as though the title " law clerk" meant that the Court was "endorsing" "all that [I] stand for." (It was also true that the Court was being given unreliable data on what I really stood for.) It is a source of joy to me that late in his life, Justice Brennan wrote and expressed regret for a decision he made under pressure. I hope that you will reconsider your own position in the Stewart affair.

Respectfully,

Michael E. Tigar