The
Public-Facing Lawyer
By Jon
Streeter
President, State Bar of California
Recently, I visited the members of the Lake County Bar Association
and had a wonderfully convivial dinner with them at a spot overlooking Clear
Lake. The stunning views of the lake that we enjoyed while sitting down to
dinner reminded me of someone I once knew, all too fleetingly and not well
enough, a teacher who belongs in California’s pantheon of giants of the
profession, along with familiar names like Witkin, Traynor and Field.
Ira Michael Heyman passed on November 19, 2011. During an
incredibly productive career that spanned six decades, Mike Heyman wore many
hats. A Secretary of the Smithsonian Institution, a Chancellor of the
University of California at Berkeley, a Professor of Law at Boalt Hall School
of Law, a Senior Policy Advisor to Secretary of the Interior Bruce Babbitt, a
Law Clerk to Chief Justice Earl Warren, and a United States Marine, Mike was
the living embodiment of the public service ideal.
He was renowned as a scholar in multiple fields; he was a public
policymaker at local, state and national levels; he was a builder of great
institutions; he was a visionary who imagined and aspired to what ought to be,
but never lost sight of what can be; and he was a practicing lawyer, a
pioneering environmentalist and a staunch defender of our constitutional
freedoms.
Tucked away in Mike Heyman’s dazzling curriculum vitae is a
brief entry – “Member of the State Bar of California.” We
have many reasons to be proud of our late colleague in the Bar. In
perusing the transcript of a 2003 oral history recorded by Mike a few years
before his passing, I found several nuggets worthy of special note.
Leader
and man of conscience
In the early 1950s while in college at Dartmouth, Mike volunteered
for the Platoon Leaders Class, an ROTC precursor program, and after graduation,
during the Korean War, was called up into the Marines. His experience as a
young Marine officer was one of the most formative of his life. He describes
the profound sense of responsibility he felt, at age 23, for more than 250 men,
and the respect he had for the “essential wisdom” of the many
“relatively uneducated” noncommissioned officers that he served
with. He also recalls “with great sadness” an incident that occurred
with a Latino private in his charge, a “relatively sight and young
fellow,” who was “arrested on the beach at Camp Pendleton in a
homosexual encounter.” According to Mike, “the military justice
system crucified him.” Mike tried to help him in the court martial
proceedings but failed. The man was “”given a dishonorable
discharge and he was taken to the front gate of the base where they stripped
the buttons off his uniform … and sent him off on the road.”
“It was especially sad for this youngster because the Marine Corps was
his life. It was the first time he ever felt like he had a family.”
Efficient
and decisive administrator
After graduating from Yale Law School and working for a few years
for the New York law firm of Carter, Ledyard and Milburn, then a “first
rate” but “very white shoe” firm in Manhattan (Franklin D.
Roosevelt was once an associate there), Mike went to work as a law clerk for a
2d Circuit Judge, which led to a clerkship for Chief Justice Earl Warren in
1956. Mike was the Chief Law Clerk for Warren, the head of all the other
clerks, a job that had administrative duties attached to the role of a law
clerk. Mike felt he landed the job because he had come from a prestigious 2d
Circuit clerkship, but his having been a Marine clinched it. He was hired to
keep things running smoothly in chambers. Warren clearly saw in Mike the talent
of a great administrator, which includes the need to be crisply decisive in
resolving competing points of view. That trait served Mike well in many later
leadership roles. Many years later, for example, when he was Secretary of the
Smithsonian Institution, Mike proposed to display at the museum the Enola Gay,
the plane that dropped the atom bomb on Hiroshima. A firestorm of controversy
arose around the planned exhibit, mostly around the written narrative
explaining the historical context and significance of the display. After
multiple drafts failed to satisfy either the supporters of the exhibit or its
detractors, Mike directed that the plane be mounted in the museum, with no
plaque or signage of any kind explaining what it is.
Teacher
and scholar
After clerking for Chief Justice Warren, Mike became a law
professor at Boalt Hall in Berkeley. He saw the role of a law professor
as more than “just teaching craft, but it’s teaching people how to
think, be aware of the consequences of their actions, and to approach problems
from different points of view.” He held a joint appointment at Berkeley
both in law and in city planning, and his scholarship in both fields had great
impact. In 1960, for example, Mike published a report for the United States
Commission on Civil Rights entitled “Federal Remedies for Voteless
Negro.” That report analyzed the federal Voting Rights Act of 1960,
critiqued its weaknesses in detail, and predicted that it would be ineffective.
It was ineffective. Five years later, the Civil Rights Act of 1965, a
centerpiece of the Johnson Administration’s legislative accomplishments
in the field of civil rights, tracked Mike’s critique to the letter. In
1970, Mike and co-author Bob Twiss, a professor in the school of architecture,
published a law review article entitled “environmental Management of
Public Lands.” Two years later, the recommendations set forth in that
article became the basis for the National Environmental Policy Act, a
centerpiece of the Nixon Administration’s environmental policy program.
Pragmatic
problem solver and honest broker
In 1961, Mike took on the case of a professor of German who was
threatened with dismissal from the University of California after refusing to
attest that he was not a communist. The notoriety Mike gained in campus circles
following his successful defense of that case led to his involvement in campus
administration, first in the Faculty Senate, then as Vice Chancellor, then as
Chancellor. One early episode, involving campus protests as part of the Free
Speech Movement, is characteristic of Mike’s style as lawyer and
statesman. Mike was called upon to negotiate the resolution of a tense
stand-off between students at a sit-in at the Student Union – the
nomenclature in those days for what the Occupy movement does – and the
university administration. The administration wanted to bring disciplinary
charges against the students, and the students wanted amnesty as the price of
abandoning their sit-in. Mike crafted a resolution for the Faculty Senate that
both affirmed the administration’s firm insistence on order and respect
for the rule of law and the students’ free speech rights. The resolution
passed unanimously. Because Mike was trusted by both sides, his resolution
resolved the crisis. As former Boalt Dean Sanford Kadish puts it, Mike was a
man of ideals, but “he has always been a pragmatic man for whom the prize
is tangible achievement.” He knew “how to see hard issues
from the perspective of the other side … and to respect the reason in
another’s view even if he finds it wanting in balance.”
Visionary
As Chancellor, Mike was known for many things, among them
prodigious fundraising abilities, a building program that transformed the face
of the campus, and a dramatic improvement in relations between the university
and the City of Berkeley. Inclusiveness and respect for all points of view was
a hallmark of Mike’s approach, which is something he later employed just
as effectively at the national scale when he went to Washington, DC, first
working as a senior policy advisor to Secretary of the Interior Bruce Babbitt
during the Clinton Administration, and then when he became Secretary of the
Smithsonian Institute. Back in Berkeley, however, where he eventually returned
to teach, he is perhaps best known for his commitment to diversity in the student
body and among the faculty. The battles over diversity were searing and in some
respects continue to this day. But Mike was ahead of his time on this issue,
just as he was at Camp Pendleton in the 1950s when he tried to help a young
Marine who was drummed out of the service for being gay. In truth, the modern
word “diversity” is not the language Mike would have used.
His was a passion for “racial integration” – the ideal for
which Martin Luther King stood – and it grew out of his and his
family’s experience of discrimination against Jews in the New York of his
childhood.
Why did all of this occur to me upon my visit to Lake County? Well,
one of Mike’s many projects was a consultancy for the Lake Tahoe Regional
Planning Agency (“LTRA”). Using his students, Mike did a
science-based study in 1970 finding that sedimentary deposition from
development adjacent to Lake Tahoe creates, in effect, two lakes. “The
lake thirty feet below is absolutely clear. However, as the lake above begins
to warm, algae growth starts. That’s a major problem.”
At the time of the oral history he recorded, Mike expressed great satisfaction
that, in the intervening years since 1970, the work of the LTRA had focused on
this problem, restricted development around Lake Tahoe, and as a result, the
problem of algae growth had diminished. Ten years later, Lake Tahoe is
crystal blue again. That, my friends, is an example of what Mike Heyman taught
his students to appreciate – the real impact of law on life, and the
importance of tackling big problems of public policy with determination and
persistence.