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Honest, Able, and Fearless

Victor Rabinowitz, Unrepentant Leftist: A Lawyer’s Memoir (Urbana and Chicago: University of Illinois Press, 1996), 352 pp., $29.95, cloth.

John Mage is a close associate of Monthly Review

Among the questions that divide my friends is whether it is possible that widespread revolutionary organization may someday occur even in the United States, the Belly of the Beast as goes a phrase all my fellow 68ers will recall. If you think the question deserves to be asked, then the history of the repression of the U.S. Left after the Second World War (and of what survived the storm) is worth your attention. After all, if this history is forgotten then the question is indeed not worth asking. How the ruling class of the United States manages its domestic repression is, in any event, of general relevance in many other places as well. Victor Rabinowitz at age eighty five offers a sharp, fascinating, and superbly written report on this question from inside that structured but flexible Great Intestine of the United States, its legal system.

What has come to be remembered as the McCarthy epoch shattered the U.S. Communist party and maimed when it did not destroy all militant and progressive U.S. labor unions. The fragments that survived helped to shape the struggle for civil rights, the ongoing attempts to come to the aid of those resisting U.S. imperialism in Latin America and especially the Cubans, and the great mass resistance to the war in Vietnam. The clients of Victor Rabinowitz and Leonard Boudin were participants in the key events of all phases of this history, whose logic (as they would have said) landed them in Court. The immediate result was, for these clients, relief and gratitude that Victor and Leonard were there. A more lasting result is the body of reported cases where counsel is listed as the firm Rabinowitz Boudin.1 These cases taken together would be a pretty thorough and continuing history of political struggle and repression in the United States over the past fifty years. It is a record unmatched by any other law firm in the country; there isn’t even a close second. But this is merely a lesser and legal sort of immortality. Lesser, because the collection of cases read in sequence would not only be incomprehensible to non-lawyers, but in the largest part would consist of inaccurate factual accounts and worse reasoning by at best conventional and often stupid judges. Unrepentant Leftist: A Lawyer’s Memoir, a clear account of this story from Victor’s perspective, amounts therefore to a public service. No serious student of U.S. social and legal history of the second half of the twentieth century can henceforth ignore this book, and no activist concerned with the questions of practice and theory will be other than glad to have read it.

The book divides in thirds. The first third brings Victor up to the start of the Cold War. Here he is an historian, selecting with skill the events best suited to tell a history in which his own youthful participation is not at the heart of the story. The tale of the American Communications Association, a militant CIO union led by Communists, I particularly enjoyed. Victor recalls an era long gone, when a trades union of telegraphers on strike could bring the New York Stock Exchange almost to a halt, and the Mayor of New York (the complex figure of Bill O’Dwyer) could refuse to come to the employers’ aid. The reason is a second good story, that of the American Labor Party (“ALP”), the only third party in New York City in the last three quarters of the 20th century able to elect Congressmen and City Councilmen in its own right. The ALP was, in this epoch, the only significant political voice in New York City free of corruption and corporate real estate influence, and O’Dwyer owed his election as Mayor to its support. Victor, who was briefly its Brooklyn organization chairman, describes the ALP at its moment of hope before the night of repression set in. Those who today would build an honest third party in the United States must think back on the ALP and remember with due respect its leading figure, Vito Marcantonio, the outstanding New York Left politician of our times.

The middle third of the book is its essence. It vividly tells the story of the suspension of the right of freedom of speech and subsequent repression of the U.S. Left. This is no ordinary history, but recalls Walter Benjamin’s injunction (Theses on the Philosophy of History, VI) that “[t]o articulate the past historically does not mean to recognize it `the way it really was’ (Ranke). It means to seize hold of a memory as it flashes up at a moment of danger.”

When the storm of state repression hit the U.S. Communist party at the end of the Second World War, Victor Rabinowitz was a labor lawyer in his mid thirties. Relatively privileged (University of Michigan, B.A. 1931, LL.B. 1934), son of a factory owner, he had joined the Communist party during the Second World War knowing full well that henceforth the cursus honorum leading to judicial position was barred. Indeed, no sooner had he joined the CPUSA than the leader of the Brooklyn Democratic party, ignorant of that fact, offered him a place on the bench to lure him away from the ALP. Victor notes that the candidates of the Brooklyn Democratic party were with multiple falsity described in the election posters of the day as “Honest, Able and Fearless.” But he had already chosen something else.

For those who need or expect an explanation for his joining the Communist party, Victor instead presents the main threads of his life at the time. He found that in the New York City of the 1930s, if he wanted to act to change an unjust world in adherence to the moral values of his family and milieu, he was of necessity in the company of Communists. He also made a fundamental practical choice that very few of his class even considered. At this deep level in Victor’s account of his life there is a real modesty worthy of love. At the more superficial levels Victor doesn’t waste time on modesty. He knows he is telling a rousing story of defense against the beast, a story of survival, resistance and reflection in which he played a highly creditable role.

To give meaning to notions of milieu and values, consider what Victor’s life would have likely been, things being otherwise equal, had his father decided at the age of sixteen to stay in Rossein (Raseinai), a town some miles north of the city of Kovno (Kaunas) in Lithuania, rather than come to New York City. Victor would have been thirty years old in the summer of 1941 when the Nazis invaded the Soviet Union, and dead before he was thirty one. If not among the hundreds of Jewish men picked off the streets and beaten to death with tire irons and clubs by Lithuanian nationalists in a downtown Kovno garage before the Nazis had even fully arrived, then he would probably have been among the Jewish intellectuals murdered by the same Lithuanian nationalists shortly thereafter at the Ninth Fort above Slobutka, or if wounded or otherwise captured by the Wehrmacht then murdered at the command of a German officer carrying out the “Commissar Order.” You see, from the point of view of this other Victor the fundamental choices of the real Victor are clear. And the perspective of that hypothetical Victor is the place from which the twentieth century is best observed and from where we must act even today.

But Victor Rabinowitz was born in Brooklyn, and the United States Courthouse on Foley Square in Manhattan is not the Ninth Fort. In the U.S. system all significant political and social questions are given legal form. This has proved effective for its rulers, not least by limiting in advance the types of permissible answers. Thus, when domestic repression began to strike the Left in the United States after the Second World War it immediately brought lawyers to the center of the struggle. This is an omen of retreat, but the stories of retreat that permit later advances are, at least for strategy buffs, the most interesting.

It’s clear that the First Amendment to the Constitution of the United States (“Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”) prohibited the Congress from outlawing a political party for its political speech, jailing its leaders and activists, driving its members from all employment in schools, newspapers, the entertainment industry, and labor unions, and jailing others for contempt if they refused to say if they had ever belonged to the outlawed organization or refused to inform on their comrades. The problem for lawyers and judges if the U.S. state must do these things, and must do so lawfully (and do so it would), is called “distinguishing” as in “distinguishing the First Amendment.” In legal usage “to distinguish” means to show that a recognized authority is inapplicable on the given facts.2 The first cases, assigned as luck perhaps had it (I share with Victor some skepticism as to the purportedly neutral procedures used for the assignment of judges in the United States courts) to the most reactionary judges, produced quick convictions upheld in marvelously evasive and dishonest opinions by the Courts of Appeal. But the U. S. Supreme Court, which generally is not obliged to hear any case it does not choose to hear, avoided the dramatic political issue and refused to accept such cases for review. They naturally wished to delay having to face the humiliation that raw political reality on occasion produces among our judges.

In 1949 there was a class of cases the Supremes could not formally refuse to hear, appeals from special three judge courts convened to pass on challenges to the constitutionality of provisions of a statute. The infamous Taft-Hartley Act of 1947 contained a provision, section 9(h), aimed at prohibiting Communists (broadly defined) from holding office in unions. The American Communications Association (“ACA”), represented by Victor, was an immediate target. Victor’s First Amendment challenge to 9(h) was rejected by the three judge court (one judge dissenting). This was then, in 1949, the first case where the Supreme Court had to face squarely the question of whether the First Amendment barred the anti-communist witch hunts. The resulting opinions in ACA v. Douds were a grotesque slice of legal history when I was in law school less than twenty years later, and today must read as if written for In Re Giordano Bruno (Vatican Ct. of Appeals, 1600). Justice Jackson explained, for the benefit of any lower court judges yet uncertain and uneasy, that the First Amendment did not apply to traitors, witches, heretics, vampires, and Communists. Now for Victor this was real life and his first Federal appellate argument. Reading the opinion must have felt like being in a rapidly oscillating house in an earthquake.3

The nationwide hysteria mounted year by year with the leadership of the Communist party jailed, and thousands on thousands hounded from their jobs, until it climaxed in the 1953 burning of the Rosenbergs in a judicial auto-da-fé against the background of the macabre media carnival of Senator McCarthy’s fascinating inquisitorial hearings. Through the rest of the 1950s the witch hunts continued but with ever decreasing force, until the last flutter was put to rest in the Supreme Court’s opinion in the Yellin case in 1963. Yellin was also argued by Victor Rabinowitz. He had been there from the beginning of the storm until its end, and as a lawyer he assesses the role of the judiciary during the Great American Holy and Patriotic Inquisition: “the courts were of no help whatsoever.”

At the height of these strange proceedings, fate required that poor Victor have upclose and personal dealings with Joe McCarthy and Roy Cohn (prosecutor of the Rosenbergs and Chief Counsel to McCarthy’s committee). He gives a nuanced view of McCarthy as cruel in his role but “off camera” a “not unpleasant man, a good-natured drunk.” But he is far too lenient in regard to Cohn. His description (“Of all the evil men I’ve encountered in six decades of law practice…the most vicious”) errs in its excess of charity. Cohn, who died of AIDS in 1986 after years of knowingly infecting the unwitting boys he paid to sodomize him, was a locus of loathsome disease. I don’t mean AIDS, having AIDS was the healthiest thing about Roy Cohn in his entire adult life.

The final third of Unrepentant Leftist is most recognizably a memoir. Here one gets a hint of the tensions, sorrows, and pleasures in the main relationships in Victor’s life: with his late partner Leonard Boudin and the lawyers of the next generation who have inherited the firm (Michael Krinsky and Eric Lieberman), and in Victor’s own immediate families of which there are two (in sequence, of course). Victor develops, with obvious pleasure, two themes from his life in the period after the end of the McCarthy era: how he and Leonard Boudin represented revolutionary Cuba in the U.S. courts; and the role he played in steering the U.S. Left lawyers’ organization, the National Lawyers Guild, through the generational passage of the 1960s.

The account Victor relates of how he and Leonard Boudin pursued and won, in 1960, the legal representation of revolutionary Cuba is more in the style of picaresque eighteenth century autobiography (say Casanova, or Victor’s fellow Litvak Salomon Maimon) than that of the staid Wall Street “My Life in the Law” variety. This was a client they needed, wanted, lusted after, had to have. And seduced, entreated, and finally won. And in retrospect, I cannot imagine that any other firm could have done a better job. Sitting next to known Communists in front of McCarthy and Cohn was better preparation for representing Cuba in the U.S. courts than a lifetime of the practice of international law. And Victor is (as always) candid in stating that at the time neither he nor Leonard Boudin knew a thing of international law. First among the many virtues of this book is Victor’s skill in cutting through the web of mystification that is legal discourse to tell the story. It is also his genius as a lawyer. Nowhere is this more precious a skill than in regard to international law which, in the U.S. legal system, exists only in a wondrous abstract form both hollow and hidden.

To explain, international law’s necessary premise is that in it “no single sovereign reigns supreme,” in the words of an honorable Nicaragua opinion by a major U.S. court in 1985.4

Put technically, this means that the courts of no nation can determine for itself what is required by international law, but in this and other regards must respect the existence of other not inferior jurisdictions not only in the heavens above but also down here among us humans. Consequently international law in U.S. courts is both hollow and hidden. Hollow because the imperial aspect of U.S. reality permits no body of U.S. law to develop in accordance with this fundamental and constitutive principle. Hidden because there is strong enough resistance around the world to U.S. pretensions as to require a body of U.S. law to develop distinguishing international law. By a recognizably dialectical necessity the body of distinguishing cases secretes in the law of the United States the real but negative presence of the resistance to U.S. imperialism around the world, in this account in the form of (always inapplicable to the case at hand) “international law.” Fear not, this is not Victor’s version. He never talks this way.

The moment in our times when the Supreme Court came closest to recognizing the fundamental premise of international law was in the 1964 Sabbatino case. Victor argued the case for Cuba. Sabbatino holds that the rule that U.S. courts will not sit in judgment on the acts of the government of another country done within its own territory (the “act of state doctrine”) is part of U.S. law and that it applied to an expropriation of U.S. owned property in Cuba. It is not insignificant that this victory for international law came at that moment of more than judicial caution that followed the closest approach to nuclear confrontation in history, the Cuban missile crisis. But Sabbatino is more than that, it exists in our law today in the manner of all authentic elements of international law. It must still be distinguished.

Almost all the organizations in which members of the Communist party took a leading role in the 1930s and 1940s were purged and/or destroyed. By the late 1960s, there were left some (not large) labor unions and the National Lawyers Guild. Victor Rabinowitz, reflecting on the achievements of a distinguished career, places first his role in preserving the National Lawyers Guild. It is today an effective nationwide organization, many thousand strong, committed to the goal of radical social change. It is an important exception to the prevailing rule, and Victor’s pride is justified.

Victor’s credible account is that the community of 1930s lawyers in and close to the CPUSA preserved this organizational treasure, more or less intact, through the great storm in order to hand it over to their 1968er successors. The succession was not handled gracefully by either side, but it took place. The lack of grace is understandable when you consider how unprecedented was the transition; the transfer of power from fathers to daughters.

Victor places the transition as beginning in 1967, when he was President of the Guild, and culminating in the memorable electrically tense Boulder, Colorado convention of the National Lawyers Guild of the summer of 1971. In August of 1971 many of the best of the youth movement against the Vietnam War had just gone underground (the “Weathermen”). Bernardine Dohrn, leader of Weatherman, in 1967 had been hired by the national office of the Guild as a student organizer. Many of us at Boulder had been brought into the Guild by Bernardine and none would dispute Victor’s characterization of her as “brilliant” and with “inexhaustible energy.” As he says, “in her travels around the country she spent half her time organizing antiwar demonstrations and the other half organizing Guild chapters to defend the demonstrators.” The tensions that erupted at Boulder were generational, but also of gender, of theory and practice, and about tactics and strategy, or “professionalism,” or white guilt, or drugs and sex and rock-and-roll. Victor is today the leading historian of these events and accurately (here I am a witness) tells the story of how the Guild survived. This was in largest part due to the practical wisdom shown by the late Martin Popper(my partner, mentor, and comrade), Doris Brin Walker, Victor Rabinowitz himself, and a few other leaders of the generation that had braved the McCarthyite storm. But here however it is clear that Victor’s account will be superseded and most likely by that of a woman from among the 68ers, if internal consistency counts for anything among lawyers. The daughters and heirs’ perspective is likely to be a bit different from Victor’s, and the heirs’ take on things usually prevails for reasons both good and bad. Victor also recounts the events, insofar as he was involved in them, that led to the sentencing of Kathy Boudin (Leonard’s daughter) to twenty years to life for a politically motivated offense committed in 1981. Here the reviewer must declare his Saint-Simonian faith that, in general and in particular, to get the account of our times most fit to act upon we must Await the Woman.5

The reader must also be warned that this reviewer is subject to a passion many might consider warped or queer, what Havelock Ellis might have called gerontophilia rosacea. That is, I have this thing for old unrepentant Reds. There is something about that handful of octogenarian men and women I cannot resist. If it has biased my judgment, so be it. I can do no other. On the best authority (that of Lytton Strachey) it is supposed to be harder to write a good life than to lead one. Victor’s achievement is then truly on several levels at once.

Notes

  1. This is how I was taught to refer to the firm in my youth. Properly called today it is Rabinowitz Boudin Standard Krinsky and Lieberman, respected and able counsel for, among other clients, Cuba. Victor Rabinowitz is now “of counsel” to the firm, and has “little connection with the cases in the office.” For some years in the early 1990s I was honored to be “of counsel” to the firm.
  2. When the authority obviously does apply (as in this case) the point of the judicial exercise is to find the most adequate substitute for the italicized part of the argument “everything you say is well and good, but there is no alternative.” The task of defense lawyer or critic faced with this brutal situation is to shine so bright a light on the theory/practice conflict that, with good fortune, an instructive and telling weakness in the structure of the dominant ideology may be suddenly illuminated. This point has been developed by Roy Bhaskar in his Dialectics (London; and New York: Verso, 1993), pp. 116-119, and elsewhere.
  3. Recently the novelist Howard Fast, in his memoir Being Red, abused the lawyer (whom I know and respect) who had represented him when Fast relied upon the First Amendment in refusing to comply with the inquisitorial demands. Fast was one of the first defendants indicted in the Cold War witch hunts. He went to jail after the First Amendment was finally distinguished as “inapplicable.” Fast complains with venom that he should have been made to rely upon the Fifth Amendment’s privilege against self-incrimination. As Victor’s account makes clear, it would have been contemptible to have pressured a client to fall back on that position before there were convincing evidences that the courts of the United States would refuse to observe the vaunted Constitutional guarantee of freedom of speech and assembly. Fast presents the odd spectacle of the public advocate of revolutionary activity demanding that in his own case his lawyer cease resisting before the fight begins.
  4. De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1398 (5th Cir., 1985).
  5. Only, of course, if she gives a recognizably Marxist account. It is analytic to Saint-Simonienne religion that progress occurs in our times and that therefore today we know things unknown in November, 1831.
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