Dissent by Durr: The conscience of an American lawyer

Although I recently posted his photo here on the right-hand side of my blog, I have not yet mentioned Clifford Judkins Durr (1899-1975) in any of my posts, and it’s past time I did.  Both he and his wife, Virginia Foster Durr (1903-1999), are heroes of mine – as indeed they should be for anyone who cares about American civil liberties and civil rights.  They were both born and raised in the state of Alabama, and they would eventually return (and become instrumental in the civil rights movement), but for most of their early married life they lived in Alexandria, Virginia, while Cliff, a former Rhodes Scholar and an attorney, worked in the Roosevelt administration, first at the Reconstruction Finance Corporation, and then as a commissioner on the Federal Communications Commission (FCC).

Cliff Durr was that rara avis in Washington: a stalwart, but unpretentious, highly principled servant of the public interest.  And, in the end, his principles prevented him from accepting a reappointment to the FCC from President Truman, in 1948.  A year before, you see, Truman had instituted a federal loyalty program for all federal employees – the anticommunist “witch hunts” were just beginning – and Durr opposed it vigorously.  His written dissent to the imposition of this program at the FCC is described in the excellent biography of Durr written by John A. Salmond (The Conscience of a Lawyer):

He was, he said, strongly opposed in principle to Truman’s executive order and therefore could not, “in good conscience, give approval to rules designed to put it into effect.”  He was convinced that the “evils of the Order far outweigh any possible good that can come from it,” containing within it “such potentialities of injustice, oppression and cruelty” that it would cause alienation rather than “the promotion of loyalty among federal employees.”  Its basic concern was not with wrongful behavior, which the courts already had ample power to litigate, but with attitudes and associations, “with ideas rather than with deeds.”  Yet loyalty could not be measured, for it “is a condition of the mind and emotions.”  There are no objective tests for its determination, so those sitting in judgment will inevitably let their “personal opinions and tastes” be their guide.  “Any attempt to punish men for their state of mind or to force their mental processes by intimidation rather than to persuade them by reason is as futile as it is wrong,” he argued.  A government could punish and reward; it could command obedience – but not loyalty.  Loyalty, it seemed to him, had to be earned.  . . .

The loyalty program was a new departure in the annals of American government, he claimed, challenging principles which all Americans “have been taught since school days to regard as fundamental.”  Its procedures could only be compared to the Alien and Sedition Laws, of which Americans had repented long ago.  Yet the Alien and Sedition Laws did at least provide for trials in duly constituted courts under constitutional safeguards.  The loyalty program did not.  Rather, it ignored the rule of law and tried to control actions and beliefs by “methods outside of the law.”  Thus it was an even greater danger to “our kind of government” than those far off acts of the 1790s.

“Our form of government,” he concluded, “rests on a basis of substantive and procedural laws, the cornerstone of which is the Constitution.”  Any “warping or weakening” of this base endangered the whole structure of government.  This was what, in his opinion, the loyalty program was doing, disregarding and perverting these fundamental laws.  It was truly “subversive activity, of a most effective and dangerous kind,” and he would oppose it with every fiber of his being.  (pp. 118-9)

Despite all this, Truman was ready to reappoint Durr to another seven-year term as a commissioner on the FCC, and even tried to change Durr’s mind about refusing the reappointment during a personal interview on April 22, 1948.  But Durr stood firm, and his career as a public servant, in an official capacity, was over.

In the immediate aftermath, Durr had hopes of securing an academic appointment somewhere and, at least initially, there were a number of feelers for him to follow up on – most promisingly, one from Princeton – but, one by one, the prospects dried up.  An unexpected opportunity, in the form of a month-long, all-expenses-paid trip to an overseas conference, only postponed the inevitable.  Cliff would have to support himself and his family by returning to the private practice of law.

With the foregoing as background and context, I’ll conclude now with another excerpt from Salmond’s biography of Durr.

From The Conscience of a Lawyer : Clifford J. Durr and American Civil Liberties, 1899–1975 by John A. Salmond (pp. 126-9):

The Durrs arrived home [from their overseas trip] on September 13 [1948], still with no prospects of academic work for Cliff.  There was nothing to do but to open a law office in Washington, and this he did the following month, at 1625 K Street, North West.  He shared rooms and a secretary with Nathan David, a former FCC employee, though they were not partners in any formal sense.  It was not what he wanted to do, but he was determined to make the best of it.  As he wrote to Milo Perkins, “The adjustment to private life is going to be painful, but I suppose I will find that there are still lots of things to do once I get underway.”  He was, however, as he told Wayne Coy, missing the FCC very much indeed.

He got his first client the very first day he went to his new office.  His name was Roy Patterson, and his case so typified the type of work Durr was to do over the next two years that it is worth discussing in some detail.  In the first place, Patterson had no money and no job, so Durr’s chances of payment were somewhat remote.  Yet this was not a consideration for him, nor did it ever become so.  “To take a case of this kind was simply part of the responsibility of being a lawyer,” he considered.  To refuse it solely on financial grounds would have been unethical.  Throughout his years of practicing law, he held to this position.  It was one of the reasons he made little money out of the profession.

Patterson was a Department of Labor statistician who had recently been reviewed in accordance with the department’s loyalty procedures and found to be disloyal.  Accordingly he was dismissed.  He had come to Durr, therefore, to ask him to handle his appeal.  As Durr read the various documents connected with the case, they confirmed all that he had feared and warned about over the past two years.  Patterson had an excellent employment history – there was ample evidence of that.  Moreover, he was a genuine war hero, having been decorated for valor in combat.  He had also been severely wounded and left permanently disabled.  However, during the 1930s he had joined two or three peace groups which, respectable enough at the time, now, with the circumstances of the game so drastically changed, were seen as Communist fronts.  Even more seriously, he admitted to membership of the Washington Book Shop, a cooperative to which, coincidentally, Virginia also had belonged.  This was an avowedly Marxist store, which sold a range of left-wing literature as well as more standard literary fare.  Though Patterson said that he went there mainly because the books were cheaper than elsewhere and that it had an excellent record collection, to the Labor Department’s Review Board it seemed to indicate subversive tendencies of a most serious kind.

Furthermore, Patterson had compounded his precarious position by admitting that he had also liked visiting the store because it was one of the few places in Washington where it was possible to have a cup of coffee and a chat with Negroes.  Patterson had come from a small town in Texas and had grown up with racial views similar to those of most Southerners.  These he had progressively shed, to the point that he wanted to meet blacks, to get to know them as human beings.  So he had often visited the Washington Book Shop for that purpose as well.  At this, the chairman of the review board, a Southerner, became most agitated.  “How does it happen that a man born and raised in Texas would think it was a good idea to be a member of an organization where you could come sit down and drink coffee with Negroes,” he asked, in a tone, according to Durr (who did not attend the original hearing but was present at the appeal), which indicated that he, at least, considered such behavior to be obvious proof of disloyalty of the most pernicious variety.  The board’s finding was just that.  Patterson was considered to be disloyal and lost his job.

Given the nature of the evidence against Patterson, Durr fully expected to win the appeal.  He did not, as a department appeals board confirmed the original decision.  Durr then resolved to take it to the Loyalty Review Board itself and, in order to secure some publicity for the case, demanded a public hearing.  Loyalty reviews were normally held in private, ostensibly to protect those being investigated, but in this case Durr thought exposure might draw the public’s attention to the injustices which underpinned the whole procedure.  His request was denied; nevertheless, the publicity which surrounded it may have had some effect.  The Loyalty Review Board reversed the original decision and ordered Patterson’s reinstatement.

Though pleased at the case’s eventual outcome, Durr was appalled at the whole proceedings.  The case, after all, had all the ingredients of what he had warned against.  Patterson had committed no crime, and there was not the slightest suggestion that he had committed any overt act of disloyalty.  On the contrary, he had confirmed his patriotism, his love of country, on the battlefields of Europe.  He had lost his job simply because of his ideas and his associations.  He had belonged to groups, perfectly respectable at the time, which were now considered suspect, and he held views on race which may have conformed to the provision of the Fourteenth Amendment to the Constitution, but not to the prejudices of the chairman of his initial review board.  Little wonder that, despite the eventual outcome, Durr’s first loyalty case depressed him profoundly.

It had two other related effects.  Durr had expected to do quite a lot of legal work for broadcasters, and even for the radio networks, using the expertise acquired during his FCC years.  Indeed, he had been promised such business.  It never came – the publicity surrounding the Patterson case saw to that.  However, it did bring him business of another sort.  There were hundreds of people like Patterson, people now in desperate trouble because of associations and ideas, often made or held in the vastly different climate of the 1930s, often subsequently repudiated, but which still had the capacity to wreck their lives.  Few lawyers would defend them, and when it bacame known that Durr was one who would, they sought him out or were sent to him.  There were lawyers, successful lawyers, former New Dealers like the firm of Arnold, Fortas, and Porter (Thurman Arnold, Abe Fortas, and Paul Porter, all friends and former colleagues of Cliff’s), who made a great fuss of defending the civil liberties of people falsely accused of being Communists.  However, according to the Durrs, they had no interest in those of folk who had actually been so or had even associated with Communists.  These people they sent on to Clifford Durr.  Thus he never lacked for business, though it was not exactly of the most prestigious or lucrative kind.

This entry was posted in Civil liberties, Current events, Durr, Clifford J., Durr, Virginia Foster. Bookmark the permalink.

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