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.