February 26, 1970
Page 4980
JUDGE HENRY WHITE EDGERTON
Mr. MUSKIE. Mr. President, on Monday of this week one of the great jurists of this century died at his home in Washington. Judge Henry White Edgerton, late of the U.S. Court of Appeals for the District of Columbia Circuit, was my teacher and friend for more than 30 years. I take this occasion now to pay him honor.
There are on the American bench, Mr. President, scholars of the law whose analytical abilities permit them to deal with the most subtle and intricate questions of law and fact. Others, men of deep human sympathies, make of their moral passion a torch to light the path of justice for their fellow men. In Henry Edgerton, as in Brandeis, Holmes, and Cardozo, the two qualities were combined.
Many of us who were his students at Cornell Law School, and who observed his opinions on the appellate bench, wished that he might be appointed one day to the U.S. Supreme Court. He would have added instantly and measurably to the intellectual and moral power of that Court.
But, as in the case of Learned Hand, it was not necessary for his opinions to issue from the Supreme Court in order to affect the course of American jurisprudence.
To understand why that was so, one needed only to read a few of his leading opinions, speaking for a majority of his court or in dissent. One that will certainly be regarded a century. from now as a landmark in the history of race relations in America was his dissent in Carr against Corning, written in 1950. Four years before the Supreme Court's ruling in the Brown case, it called for an end to officially sponsored segregation in the District of Columbia schools.
What is so compelling about that dissent was its reliance upon established fact, in showing that Negro students were being offered an inferior education in the public schools. Thereafter it marched with vigorous logic to its conclusion:
I submit that [racial segregation in schooling] fosters prejudice and obstructs the education of whites and Negroes by endorsing prejudice and preventing mutual acquaintance . . .
By preventing a dominant majority and depressed minority from learning each other's ways, school segregation . . . aggravates the disadvantages of Negroes and helps to preserve their subordinate status . . . It is humiliating to Negroes. Courts have sometimes denied that segregation implies inferiority. This amounts to saying, in the face of the obvious fact of racial prejudice, that the whites who impose segregation do not consider Negroes inferior. One might as well say that the whites who apply insulting epithets to Negroes do not consider them inferior. Not only words but acts mean what they are intended and understood to mean.
It is sometimes suggested that due process of law cannot require what law cannot enforce. No such suggestion is relevant here. When United States courts order integration of District of Columbia schools they will be integrated. It has been too long forgotten that the District of Columbia is not a provincial community but the cosmopolitan capital of a nation that professes democracy.
I have quoted this at length, Mr. President, because it exemplifies a clarity of thought and expression that the Senate and the country might envy as it considers related questions today.
Much has changed in the District of Columbia as in the Nation, since 1950. Many have grown weary and some have despaired of the effort to achieve what the Constitution requires. Judge Edgerton's words are a tonic for those who have temporarily forgotten what the struggle is all about.
Henry Edgerton was a magnificent human being who contributed to the advancement of his fellow citizens. He lived a full life and left a rich legacy in the law. I shall treasure my association with him for as long as I live, and I salute his memory.
I ask unanimous consent that Judge Edgerton's obituary and an editorial from the Washington Post of February 25 be printed in the RECORD.
There being no objection, the items were printed in the RECORD, as follows:
[From the Washington Post, Feb. 25, 1970]
JUDGE H. W. EDGERTON DIES
Retired U.S. Court of Appeals Judge Henry . W. Edgerton, long a champion of civil liberties and civil rights who often saw his dissenting opinions become the law of the land, died Monday at his home, 2925 Glover Driveway NW. He was 81.
Considered a great craftsman of legal writing, Judge Edgerton, although retired since 1962, had continued to sit on cases before the Appellate Court here as late as last summer. He had been in ill health for some time.
He had served as chief judge of the Court of Appeals for three years before resigning from that position on his 70th birthday in October, 1958.
Just last Saturday, Judge Edgerton had received an honorary degree of doctor of laws from George Washington University at the School's winter convocation. It was accepted for him by his son, John, of Washington.
The citation accompanying the degree summed him up as a judge, teacher and citizen in this way:
"He combines the penetrating insight of a scholar with the jurist's sure knowledge of human affairs in a career extending over more than 50 years of public service. A superb professor of law, he became an equally distinguished judge. During his many years on the bench . . . his incisive, analytical ability, coupled with a warm and sympathetic understanding of the human problems of modern times, made him one of the outstanding judges of this century. He had the courage to stake out new positions on the frontier of an advancing legal system, particularly in civil rights and civil liberties. His landmark decisions in these areas led the way to later action by the Congress, the President, and the Supreme Court of the United States."
One of Judge Edgerton's memorable dissents came in 1950 and was a forerunner to the Supreme Court's 1954 school desegregation decisions. At that time, Judge Edgerton had this to say about the utility of court orders in the social sphere:
"It is sometimes suggested that due process of law cannot require what law cannot enforce. No such suggestion is relevant here. When United States courts order integration of District of Columbia public schools, they will be integrated."
In a 1948 dissent, Judge Edgerton raised one of his many protests against the excesses of some congressional investigating committees. He said that he would hold that the House Un-American Activities Committee's questions in one case were aimed at exposure rather than legislation and that they abridged freedom of speech.
Judge Edgerton consistently supported appeals at government expense by paupers convicted of crimes but unable to pay attorneys fees and once wrote in an opinion:
"The United States can afford to let poor defendants take criminal appeals that the rich could take. It cannot afford to do otherwise."
Born in Rush Center, Kan., Judge Edgerton spent part of his childhood in Washington. He attended the University of Wisconsin and graduated from Cornell University in 1910. He was elected to Phi Beta Kappa while a junior at Cornell and had been class orator. He entered Harvard Law School after spending a year in Europe and received his law degree in 1914. He joined a law firm in St. Paul, Minn., but soon came to Washington to join the staff of the Library of Congress.
Judge Edgerton taught law at Cornell, was a professor of law at George Washington University here and was a professor in the Cornell Law School in 1937 when he was appointed to the U.S. Court of Appeals for the District of Columbia (now the District of Columbia Circuit). The author of numerous articles on legal subjects, he also held an honorary doctor of laws degree from Yale University.
His kindness, his courtesy, his integrity and his devotion to justice and human freedom brought him the warm respect of the students he taught, his law clerks and colleagues.
When Judge Edgerton left Cornell Law School, almost every student in the school appeared at a farewell dinner they had arranged for him. His law clerks paid a similar tribute 20 years later when he was honored at a dinner attended by Supreme Court Justices, judges and lawyers.
His opinions relating to civil liberties were put into book form, entitled "Freedom in the Balance," which was edited by Eleanor Bontecou and published by the Cornell University Press.
In addition to his son, Judge Edgerton is survived by his wife, Alice Durand Edgerton, and a brother, William F., of Chicago. A daughter, Ann, died in 1950.
The family requests that expressions of sympathy be in the form of contributions to the Henry White Edgerton Prize Fund at Howard University.
HENRY WHITE EDGERTON
Judge Henry Edgerton was one of those rare men whose careers afford a perfect fulfillment of great native talents. The law was for him an art no less than a profession. Through almost the whole of a long, full life, until his death on Monday at the age of 81, he pursued it creatively, employing it always as an instrument of justice and as a means toward the end of a free society.
Henry Edgerton's judicial philosophy was rooted in a faith, first; in the idea of human equality and, second, in the utility and social value of individual liberty. There was nothing sentimental in this faith. It was profoundly empirical – as, indeed, it was in the minds of those who wrote the United States Constitution. Judge Edgerton believed not only that order is indispensable to justice but that justice is indispensable to the maintenance of any orderly social system. Within any true meaning of the term, he was what is sometimes loosely called a "strict constructionist."
This is to say that he regarded as unexceptionable the ideas expressed in the Declaration of Independence that "all men are created equal" and that they "are endowed by their Creator with certain unalienable rights." He construed strictly the constitutional commands that conscience, expression and association may not be limited by law and that no person may be deprived of life, or property except in accordance with due process and with the procedural rules fixed by the Bill of Rights.
As a professor of law in his earlier years and during his 30 years as a judge of the Circuit Court of Appeals here, Henry Edgerton was as much an artist as a philosopher of the law. The extraordinary sparseness and precision with which he used words gave his opinions great power; and no doubt this is why his dissents, breaking with tradition, so often proved seminal and found subsequent support in the Supreme Court. His dissenting opinion in a District of Columbia case in 1950, asserting that racial segregation in tax-supported schools is unconstitutional was followed in almost every particular by the Supreme Court's historic and unanimous decision of 1954. So was another dissenting view contending that racially restrictive covenants on real estate enforced a "ghetto system" incompatible with principles of equity or with the Constitution.
At its winter convocation only last Saturday, the George Washington University conferred as honorary degree on Judge Edgerton through his son, a distinguished lawyer. "His incisive, analytical ability coupled with a warm and sympathetic understanding of the human problems of modern times made him one of the outstanding judges of this century," the citation said. "He had the courage to stake out new positions on the frontier of an advancing legal system, particularly in civil rights and civil liberties." The tribute aptly summarizes and commemorates a superb record of public service.