BY HOWARD M. ROMAINE, ATTORNEY AT LAW

The passage of a man, almost universally recognized as an outstanding jurist, and the first African American Chief Justice of the Tennessee Supreme Court, was recognized in print, in tribute, and in life celebrations across the city of Nashville and the State of Tennessee this week.”Birch left imprint on state judiciary,” headlined The Tennessean. However, former Chief Justice Adolfo Birch’s ongoing opposition to the death penalty, arguably his most important juristic and moral cause, was mentioned but not discussed in depth in the paper’s account.

Neither was the equally important fact that there is not and has not been an African-American on the Supreme Court bench since he stepped down in 2006. Nor was there any analysis of this strange halting of the often paralyzed American effort to create a ‘more perfect’ and more racially and sexually diverse judiciary. The young reporter for The Tennessean, Brandon Gee, who wrote the story of Birch’s life and passage, recalled being awakened at 6:30 AM last Sunday, August 28, and working straight through to 9:30 Sunday evening to complete the story. Thus, his account was neither prepared carefully as Birch’s life approached its end, nor was he given time to adequately document the truly historic aspects, nor

search the record for the intense opposition which arose to Judge Birch in his last campaign and resulted in the only unseating of a Tennessee Supreme Court Justice, that of Justice Penny White, in 1996, for her support of an important Birch written decision in a death penalty case, The dumbing down of newspapers, by staff reductions, and time constraints, as well as the loss of institutional memory, all result in the depletion of serious writing in the local paper.

Remember there was once a man called David Halberstam who reported on the civil rights movement, for The Tennessean, and later wrote the most important book about the Nashville movement, The Children. This book was frequently cited by the Rev. James Lawson, in his lectures at Vanderbilt, after his return as University Professor in the last decade, 50 years after his expulsion for leadership in the non-violent movement, now sweeping the world. Brandon Gee, working from clips,he said, got the name of a locally prominent criminal defense attorney, Jude Lenahan, wrong, spelling it Leneha, and not apparently realizing it until this writer called him Tuesday, completing a story for The Tennessee Tribune.

Gee’s lengthy piece lumped one section under a heading, “Controversial career” which included allegations of alleged campaign improprieties in the 1982 race against Jude Lenehan, with his dissenting opinions in death penalty cases, as if to dissent against procedural irregularities in the huge issue of state imposed murders are to be equated with allegations of campaign irregularities.(as the story concluded, the FBI found no violations). Perhaps the more important fact left out of the mainstream media account is how he managed to be elected despite what many feel were his courageous and principled stands on the issue of capitol punishment, while his colleague in the controversial vote, Penny White, was denied her seat after voting in support of a decision written by

Justice Birch, overturning a death penalty decision for constitutional questions. Later, in 1998, Birch was able to retain his seat, despite some of the same pro-death penalty opponents uniting against him.One observer, the former head of the Tennessee Association of Criminal Defense Lawyers, Paul Morrow, said that Judge Birch was an unceasing, indefatigable campaigner, mentioning seeing him once at a musical event after he had already secured re-election, shaking hands of all there. Another lawyer pointed out that Birch perhaps made a deal in the appointment of the Attorney General to head off the opposition. Also, White was on the ballet alone, making a target, while the whole court was up when Birch was re-elected.

Birch’s Education at Howard Law School One “neutral way” in which the history of segregation in higher education is avoided in media is reflected in the way Justice Birch’s Howard University Career is depicted as heroic, while avoiding mention that African-Americans – except in isolated cases, like LSU Law School, were prohibited by law in the 1950’s from attending professional schools in the South – often a preparation in peer connection as well as legal education for state offices in the judiciary.

For example “As a student at Howard University in Washington in the mid-1950s, Birch was able to watch Thurgood Marshall and other attorneys rehearse and prepare to argue the Brown vs. Topeka Board of Education case before the U.S. Supreme Court. The 1954 case ended racial segregation by law and was among the events that triggered the civil rights movement that followed. Birch later cited the rehearsal and preparations as one of the highlights of his life. Wiki’s profile states that Birch, the son of an Episcopal priest, was a stalwart scholar, elected to the law review at Howard. It adds that Birch taught law at Meharry Medical School and at Fisk, undoubtedly at the same time as he struggled to begin a legal career in a segregated society.

He also recalled that after becoming an attorney, his first law office was a corner of a real estate office behind some filing cabinets. He maintained a private law practice while working as a prosecutor with the Nashville District Attorney General’s office, an office that he recalled was not racially segregated in its organization or in the assignment of prosecutors to handle certain cases. Tennessee Supreme Court Chief Justice Cornelia Clark noted Birch’s status as the only state judge to ever serve at every level of the legal system. His fellow justices selected Birch as chief justice in 1996. He retired from the court in 2006 while battling pancreatic cancer.

SINCE 2006 WHAT HAPPENED DURING BREDESEN’S ERA OF JUDICIARY NOMINATIONS?

It is all quite good and just to celebrate the life of Justice Birch, but was there opportunity to nominate another justice of similar quality and independence. This writer, also on a deadline, can only find one mention of this, in the Knoxville press, in the context of mentoring other African-American lawyers and judges, “Many who knew Birch remembered him Friday as a mentor who generously gave his time to advise other lawyers and judges. “I’d have no career without guys like A.A. Birch,” said lawyer Luther Wright Jr., 40, of the firm Ogletree Deakins.

“Had it not been for him, I think there would be fewer African-American attorneys in Nashville, likely in Tennessee.” Wright said Birch repeatedly used a simple quote in urging black attorneys to keep a high profile in their communities as a way to inspire other African-Americans: “You can’t be what you can’t see.” D’Army Bailey, former circuit court judge in Memphis and a founder of the National Civil Rights Museum, said Birch was the main one to encourage him to seek appointment to the Tennessee Supreme Court.

A Big Story Untold, Unexamined

What is the story behind the failure to nominate the distinguished graduate of an Ivy League law school, Yale, and published author, and trial Judge D’Army Bailey to the Tennessee Court of Appeals or Supreme Court? Who were other possible successors to Judge Birch, and why were they not selected, or, chose not to run for the high court. The lack of institutional memory in important public sources of news, as well as the systemic failure to realize the psychological aspects of the resurgence of racism in the larger society, and the kind of self-indulgent provincialism, which equates a Yale Law Degree and extensive work as a legislator in California, as well as a history as a successful trial judge in Memphis, as ‘subversive credentials (my memory of the debate over the D’Army nomination) all reflect a new know nothing ism in Tennessee.

A kind of worship of ignorance and lack of education which suits the charicatures of the cultrue, rather than the aspirations of it, at its best, as the career of Judge Birch showed. The state of Tennessee is awash in a kind of mentality which describes Birch’s career as a pathfinder, and instead makes it look more like an outlier, or accident. Perhaps it was simply the luck of a group of congruent factors, a favorable Democratic Governor, and a less energized far right movement, of the type which has swept Tennessee over the last few years, with the rise of the ‘tea party.’ Plus, a uniquely committed and courageous individual campaigner, as well as scholar, and judge. When will Tennessee find another, and what should be in place to plow the fields of fair discussion to lift up another of Justice Birch’s character, competence and political savvy?

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