A Reluctant Mentor - Byron White the Man

Judge David M. Ebel shares his stories as a law clerk and friend to former U.S. Supreme Court Justice Byron R.  White (1917-2002). Tune in to learn more about Justice White's storied career including his achievements as an athlete, scholar, lawyer and judge. 

To learn more about Justice White, read this special tribute appearing within the Historical Society's spring/summer 2017 newsletter authored by Judge Ebel. The article was released on the 100th anniversary of the Byron White U.S. Courthouse in Denver.  To inquire about courthouse visits and tours, call 303/844.2067. 

Transcript

Final Judge Ebel on Byron White 3.3.2022

Wed, 2/16 3:01PM • 24:26

SUMMARY KEYWORDS

justice, white, people, clerks, thought, judge, colorado, 10th, kohlberg, supreme court, admired, circuit, putter, lawyer, poem, person, putt, graduated, ebel, court

SPEAKERS

Leah C. Schwartz, Tina Howell, Judge Ebel

Judge Ebel  00:02

I'm David Ebel and you're listening to Tales from the Tenth.

Leah C. Schwartz  00:13

Hello, and welcome to tales from the Tenth.  A podcast about the rich history, culture and contributions of the 10th Circuit courts. I'm your host, Leah Schwartz, a Wyoming lawyer and former 10th Circuit Law Clerk, 

Tina Howell  00:25

And I'm producer Tina Howell, the Emerging Technologies Librarian for the 10th Circuit. 

Leah C. Schwartz  00:31

On today's episode, we'll hear some stories about Justice Byron White, the namesake of the 10th Circuit's Denver courthouse. Justice White was born and raised in Wellington, Colorado near Fort Collins - and was one of only five United States Supreme Court justices from a 10th Circuit state. At the University of Colorado, he distinguished himself both academically and athletically, and, upon graduating deferred a Rhodes Scholarship to play in the NFL. During World War II, he served as a naval intelligence officer. He then graduated from Yale Law School and clerked for US Supreme Court Chief Justice Frederick More Vinson- before returning to Colorado to practice. In 1961, President Kennedy appointed White as the United States Deputy Attorney General and a year later to the United States Supreme Court. Justice White retired in 1993- and returned to Denver in 1998, where he lived until his death in 2002. With us today to discuss Justice White and his Western roots is David Ebel, a senior judge for the United States Court of Appeals for the 10th Circuit. Judge Ebel worked as a law clerk for Justice White and was one of his close personal friends.  Let's talk about Justice White a little bit. 

Judge Ebel  01:46

Let's do that.

Leah C. Schwartz  01:48

So, first of all, can you just tell us how you first met Justice White and the circumstances leading up to that meeting? You mentioned that you were selected for this prestigious clerkship. But for those who may not know the history, can you explain what that was like and how you first met him?

Judge Ebel  02:04

Yes, back then it was way more competitive than it is today. Today, each Justice has four law clerks- When I was there, each justice had only two- And they kept them for two years. So, there were only nine openings in the country. I went to Michigan; Michigan had failed to place a clerk at the Supreme Court for a year or two before and they were feeling very badly about that. I was graduated first in my class and was editor in chief and had won the moot court competition  my freshman year. And so, they said, "We want you to be our standard bearer." So, with the endorsement of Michigan, I said, "Here's five justices, I would consider being hired by."  The other four, I thought were more ideological than I was interested in. So, I said, "Only apply to those five." And I got fortunate; I was selected for interview by all five of them. I went to Justice White and interviewed the others too. So taken by White by his candor,  his matter of fact- He didn't give great flights of fancy- He just he told it like it was and then he stopped. I immediately thought this is somebody I could unequivocally admire. And so, when he called me a day or two later and offered me the job, it was the easiest-, other than proposing to my wife easiest-- decision I ever made.

Leah C. Schwartz  03:18

Incredible. Do you think that your Kansas roots had any bearing on why Justice White chose you?

Judge Ebel  03:25

I think I had a disadvantage being chosen by Justice White because he was very bothered coming from Yale - that a lot of his colleagues just hired Yalies, or Harvard people. And he was a non-privileged kind of a person. And he said, "There's bright people all over the country. Why don't we hire from other law schools? - And he was the only justice, that believed that. I admired that. I since I've adopted that myself and I've hired clerks now from maybe 25 law schools. His viewers, there are good people all over America. He says the top person or the top one, the top five or so in, in almost any reputable law school would be as good as the people you're going to find at Harvard, Yale, or anywhere. Why I think White selected me- I think he liked that I was fairly plain spoken like he was. And I didn't appear overly odd, which was a real turn off for him. He really wanted to be treated as a normal person.

Leah C. Schwartz  04:18

What was it like working in close quarters with him on a day in day out basis?

Judge Ebel  04:23

He did not want to be a mentor. Because he thought, if he was a mentor, he would be responsible for his mentoring advice. And he didn't want to be responsible for me. He only wanted to be responsible for him. He only gave two pieces of advice ever. I got both of them. And they were minor things nothing profound. All of us admired him. But none of us got any overt mentoring from him. So, we all created, "what would Justice White have said if he were going to be our mentor?" And those are the rules we learned to live by. So, we had annual law clerk reunions and we would have such a kick we He would all talk when he wasn't around about, "what do you think why would have said if he had said Anything at all?" Those are the rules to live by. So, it turns out, he caused us to be our own mentors.

Leah C. Schwartz  05:12

As a reluctant mentor. 

Judge Ebel  05:15

As a reluctant mentor. 

Leah C. Schwartz  05:15

Yes, he still became a mentor to you though. It sounds like it. What did you learn from him by way of example?

Judge Ebel  05:24

I think the most important thing I learned from him was the fear of fame flattery. A lot of famous people pretend to be modest, not Justice White. He was at his core, who he thought he was, was just Joe Blow. And it was so liberating and refreshing that it was never about White. I was so profoundly influenced by that. You would not have expected a Justice of the Supreme Court to be that way. Others acted or say the right words in public. And he honestly, if we have time, I'll tell you a snowstorm story, just to show you how he thought he was. One day we had a tremendous snowstorm in Washington. We had about 32 inches of snow. My clerk and I got in after several hours of effort and no Justice White. We waited a few hours still no Justice White. We called the Highway Patrol because again, no cell phones in those days, and we said, "Can you try to find him?" So, they agreed to go out the route he might have taken to see if they could locate him. No Justice White for about four hours. Finally, he showed up with his  trench coat soaking- his overcoat soaking wet- hair matted down, and shoes scuffed up. And we said, "Where were you? We were so scared and worried about you?" Well, that immediately made him angry, because it implied that he was weak and needed somebody to watch after him, which he just took as a great insult. And he just looked at us and he's a man of fairly, very few words and all he said was "Boys, have you looked outside, it's snowing out there. I was simply helping shovel people out of their snow drifts like anyone would." And with that he turned and went back to his desk. Never occurred to him that he wasn't just anybody. But he was pushing cars out of the snow drift. But the remarkable thing was he didn't think it was remarkable. It's just what you did.

Leah C. Schwartz  07:22

Wow. So, he took time for everyone even as a Supreme Court Justice, someone of that stature. I think there's another story that comes to mind when you were... I think this must have been after you completed your clerkship, but he was out shopping for some jewelry with his wife.

Judge Ebel  07:37

Yeah, yeah, that's another lesson I learned from him besides the fact don't be too pumped up about yourself and flee fame. He found it dangerous. But the jewelry story was another characteristic of his, which I admired and probably had the inclination to follow. Anyhow even before I met him. He was interested in everything. The difference between him and me is I was the Platte River interested in everything but an inch deep. He was interested in everything but a mile deep. So, he had both depth and width, and I just went for the width. But he was here once visiting for the summer or something and he wanted to buy his wife Marion, some earrings, little diamond stud earrings and we went to this jewelry store Kohlberg. It was a famous old jewelry store that's no longer in existence. But Mr. and Mrs. Kohlberg two elderly, diminutive Jewish proprietors. He had died, Mr. Kohlberg had died. So, this little petite 70- or 90- pound woman was running the shop. And we went in. He said, "I'd like to see some earrings and some diamonds." And so, she brought some diamonds out and put them on the case for him to look at, and she said, "I think I got some more. I'll go back and look for some more." She went in the back room, and here Justice White and I were looking at these diamonds. She came back and Justice White said, "You know, Mrs. Kohlberg, you shouldn't have done that because we could have taken those diamonds and run out the door." And she looked at him and she said, "No, you couldn't. If you had done that, I would have chased you down and tackled you." And that genuinely insulted him, that she would think she could tackle me. He said, "You couldn't tackle me." And she said, "Yes, I could." And I stood there for five minutes while the two of them had a genuine, not fake, heated debate about whether this 80- or 90- pound woman could have tackled Justice White. Funny, funny guy.

Leah C. Schwartz  09:28

Well, and that's a good segue into his football legacy. I mean, was he the only judge... I mean, I think they said at his confirmation hearing, "This is the first Detroit Lion. we are appointing to the United States Supreme Court."

Judge Ebel  09:42

The first Detroit Lion, the first person who was All American in college, the first one that was the runner-up for the Heisman. His football career was legendary. He was All American and famous in college. He was drafted number one in the entire NFL-- first round first pick. And he postponed it to become a Rhodes Scholar first, just a quick caveat detour. He wasn't only a football player - he was a heck of an athlete generally. He had four letters at CU--a big school-- four football letters, three basketball letters, and three baseball letters. And I said, "So Justice, I know you were a famous football player, All American, and everybody talked about you, and you were Whizzer and everything. How'd you do in baseball?  What was your batting average?" He said,"450." 450. And I said, "Well, how about basketball?" He was the captain of the CU basketball team, the only time they ever got to the finals.  He took CU to the finals as the captain. He graduated from college first in his class--big school number one person in his class. Between all that studying to be number one and three sport letters you wouldn't have any time for anything else. He was president of the student body at the same time. And then after he graduated a few years later, he married the daughter of the president of the university. Now, that is certainly a better academic career than most of us have ever had. His first year there the line did not like him. He was paid $15,000, which was the highest paid. Any football player got--so high that they couldn't give the linemen a pay raises that year. So, the linemen refused to block for him. And the press once interviewed him and they said, "Aren't you feeling bad that you're ... we see the line we know they just let the defense come right through to tackle you. Don't you feel bad your line isn't supporting you?" And he said, "No, no, they're... the boys are doing good. They're doing fine." Well, with nobody blocking you as a rookie in the league, everybody gunning for you he was the leading ground gainer in the entire NFL. He then went to Detroit, where again, and he was, and he was a rookie of the year. Then he went to Detroit. He was the leading ground gainer again. And while he was twice more playing in the NFL-- and one of those years again, the leading ground gainer the NFL-- he was at Yale Law School simultaneously, where he graduated first in his class.

Leah C. Schwartz  12:10

So, for someone who was not out for praise, and had just a basic humility about him, what do you think it was about Justice White that motivated him to accomplish all these things in all these different arenas?

Judge Ebel  12:25

It is one word: competition. He loved competition. And it was just the thrill of testing yourself. Not belittling the other guy. Not beating the other guy. I mean if he lost, it didn't matter, as long as he tested himself. It was his way of testing himself. I mean, he did everything with us in competition. He put me on crutches. He put many of his clerks on crutches. Or we'd play basketball together because he just knocked the crap out of us. But if you play basketball with him, he wasn't going to show you any quarter. He once knocked a guy's glasses off of him broke them, said the guy, quite dismissively for being such a sissy that he got his glasses knocked off, said, "Come on down. I'll call the optician and we'll get some new glasses for you." Called the Optician, and the optician said "Oh, you work for that guy White? He's an animal! You need to get contacts." So apparently, he broke  a lot of glasses. I mean, with us we would regularly play basketball or handball.

Leah C. Schwartz  13:23

At the  highest court in the land. 

Judge Ebel  13:24

At the highest court in the land. We putted all of the time. He had a putter, and we would stand in our chambers, putt through the secretary's chambers, and then whoever got the ball closest to a leg of his couch won. We were once putting, and a bunch of people came in- I think they were nuns on a tour because they had no security at the court in those days. You could just wander in. They looked at him. He was holding the putter. He was a bit embarrassed. He stuffed the putter into my hands with a (grunt). He turned around and walked into his office leaving me to explain to the nuns why we were putting with a justice of the Supreme Court.  One other story on that that emphasizes his competition. One day some newspaper people came in-- They came in they caught him putting with his two clerks one of them whom was a woman. He hired one of the first woman clerks. So, the newspaper people came in and said, “You know, you’re legendary for putting with your clerks. We'd like to get a picture of you. Why don't you have that woman with a putter, and you be around behind her with your arms on the putter and showing her how to putt and we'll take a picture?" Now your eyebrows raised. And mine suggest that that might have been improper. But back in those days, nobody thought about that. That was not on the agenda. And it wasn't on Justice White's agenda. Instead, he responded, "No, I'm not going to do that." Sexuality was not part of the conversation. And the news paperer said "Why?" And he said, "Because we're putting to win. I'm not going to teach a competitor how to putt." And he turned around and walked back in.

Leah C. Schwartz  14:56

Amazing. What do you know about Justice White's own decision-making process after he finished his tenure on the Supreme Court, coming back to Colorado and choosing to build his own life after the Supreme Court in Colorado?

Judge Ebel  15:10

He wanted to be a lawyer. That's really what he wanted to be. And he valued their contribution to him on the court. He saw himself as a lawyer, more than a justice.  He really did. I think he chafed at the bit a little bit as a justice for the isolation. I mean, he loved, you know, the fly fishing with other lawyers, and he loved the competition. A man who was so competitive, when you're on the Supreme Court, you aren't competing with anyone. You're at the apex. I know that he missed the competition of trial work. He has told me that his happiest days, were as a trial lawyer at Davis Graham. And he, that's one of the reasons he had such respect for lawyers. It wasn't fake . He really thought they did God's work -and he thought they were the ones that set the table, made the hard decisions, and he was simply a yay or nay person. His brain said, I'm a lawyer. And I love it because I'm a competitor.

Leah C. Schwartz  16:03

What do you think was his driving ethos, I guess, as a judge? Or what were his predominant concerns in hearing cases?

Judge Ebel  16:11

To get the right decision for that case. He is not going down as one of the famous justices, because newspaper people like to get ideological about people. This is a liberal judge, this is a conservative judge, this judge has this philosophy, or this judge is going to rule this way on religion. You couldn't predict any of that with White. I once asked Justice White, "What are some of the most important cases you've decided?" He looked at me with dismissiveness, and he said, "I don't judge cases that way." He says, "The most important ones, were the ones that mattered to the clients. And that was every single case. There was no case stands out at all."

Leah C. Schwartz  16:48

He cared about the litigants and the results for them.

Judge Ebel  16:50

He cared about the litigants. And he wanted to be right. He wanted to be right. And he wanted to follow precedent. He was very much a pragmatist for each individual case. And so, in that regard, not only is he not going to be recorded as one of the great influential justices, because he didn't leave a construct, but he didn't want to be.

Leah C. Schwartz  17:07

Do you think his Western upbringing had something to do with that pragmatic approach to his jurisprudence?

Judge Ebel  17:14

Absolutely. He was the only one that I know of who grew up in a rural small town in the center of the country. Almost all the others came from the coasts. Now Byron White, you know, did go to Ivy League school. You know, Yale is no slouch. He ultimately was a Wellington man from day one to day end.

Leah C. Schwartz  17:33

When Justice White did pass away, I understand that you had the honor of being designated by the family as the person who went through many of his effects. Is that right? 

Judge Ebel  17:43

Yeah, yeah. 

Leah C. Schwartz  17:44

What did that mean to you?

Judge Ebel  17:45

I mean, it was an honor__, not an honor. But it was a wonderful opportunity to go through stuff with him. In all candor, I was the only clerk in Colorado, and he was now living in Colorado, and this stuff was being shipped to Colorado. So I was, I mean, I could have been Joe Schmuck, and would have been the logical one to go through all that stuff with him.

Leah C. Schwartz  18:03

So, you actually went through, you went through items together then?

Judge Ebel  18:07

Everything everything.

Leah C. Schwartz  18:08

The gist of it. Yeah. 

Judge Ebel  18:08

 His 100th law clerk__, his last law clerk, he got to 100-- had been a law clerk for me, Joe Thai, who's a professor at Oklahoma now. So, Joe would package up boxes at a time of all of his stuff. The Supreme Court wanted them kept in Washington. He said, no. He said, "I want them out there in, Colorado." And I had agreed that the 10th Circuit would make a space and display it there. And he said, "I'm going to be out there where people, are not just in DC." Plus, the fact he said, "There's no more room in the Supreme Court and there's a lot more famous justices than me that are going to hog all the space. I want to have a spot right, speak to the people." He never was that eloquent. He never said that. But that was my reading of his statement. 

Leah C. Schwartz  18:08

Wow!

Judge Ebel  18:12

But in any event, he would come every week and or so. And we would get a new box, and I would cut it open. And we would go through stuff. By then-- maybe because of the concussions he had, who knows__, but he had lost a lot of ability to speak. He still processed, but his vocabulary was very limited. And mostly it was the word "exactly." So, you would ask something in you would either get nothing which meant not exactly, or you would get "exactly." I would then have to postulate what I thought something was and ask him and then he would confirm it or not. And this is about like box 8 or 10 or 12. We had been doing this for some months. And there was a box that came that day. And one thing that was wrapped in brown paper and I started to open it. He looked at it and with this big, massive finger - he said "if, if". I said, 'If what? If what?" and that's all he could say was the word "if." I said, "Do you want me to read it? You want me to open it?" He said, "Exactly.? So, I tore the paper off. It was his high school notebook from his English class. And he kept saying "If, If, If." And I started to look through it, and, about page 10 -  I saw the poem If by Rudyard Kipling. And I'll tear up now because it was so poignant. And he nodded yes. And I read it. And the poem starts, "If you can walk with kings- but not lose the common touch, if you can bear false accusations- but not be insulted. If you can run the full mile without getting tired, if you can talk to kings and common people equally, if you can care what people say- but not care too much." And then it concludes, "if you can do all these things, and keep the common touch, be willing and able to talk to kings and common people, then you will be a man." And I was dumbfounded. I still am. And he sat there. And it's the only time I've ever seen him cry. And by crying, I don't mean bawling. I mean, just a little tear. And I realized that that high school teacher, either defined for him or put into words who he always was, which I think is probably more accurate, of what it means to be a man. And it defines... every sentence in that poem defines Justice White. It is..., All the people, there have been law review articles and spoken about him, they can't even begin to sit in the shadow of that one poem-If, I told Marion about it, immediately. She liked it. She wanted that to be the focus of funeral in fact that was printed, the poem was printed on the back of the funeral brochure. And the clerks also had asked me if I would be their representative because I had spent probably more time with Justice White than any of the other clerks because I had helped arrange a lot of his reunions. As I said, we had fished together, we skied together, we camped together. We really had grown quite, quite close. So, I was honored that Justice White's family saw it. And so, it kind of made sense. But so, I read that poem "If." And I said, "You know, there's nothing more I can say."

Leah C. Schwartz  22:10

I don't really know how we could continue on with the interview after that, either judge. I mean, that's so touching. Thank you for sharing it. Anything else you'd like to share, though, about Justice White and his legacy before we conclude?

Judge Ebel  22:21

People sometimes say, "What was it like to be in the presence of a genius?" But I never thought of him as a genius. And he certainly never thought of himself as a genius. It was a combination of very smart, and very dedicated. And that equation equaled a very high quotient. But what left the biggest mark with me, was the genuineness of it, the fear of fame, the disdain of what other people thought, the living Absolutely- by your own rules of integrity, and not worrying very much about whether people approved, or didn't approve, if you were true to yourself. And if your self was just like everybody else in this world. Those are the things that he left with me, some of which I had not been prepared to learn. I mean, the fame thing was a surprise to me. You know, I mean, I always thought you always wanted to do well in school, you always wanted to get elected to high things- and you always wanted to do this- so people would know who you were. And so, you could move on to the next step. And White took all that down. He just deflated all of that. That was a tremendous gift that he left for me. To live in the moment. Do what you want to do. Don't worry about where it will lead what other people think about it. Remember that you're no better than anyone else. Those are his legacies to me. Well, you said beware of the praise of currency Judge, but I'm sure Justice White would be very proud of you. Thank you very much for sharing these remarks today. My pleasure.

Leah C. Schwartz  23:55

This episode was produced and edited by Tina Howell. Subscribe and download at the Historical Society's website 10th Circuit history.org or at Apple Podcasts, Spotify, or Stitcher.

24:08

Special thanks to Greg Kerwin, Brent Cohen, Stacy Guillon and Diane Bauersfeld.

Leah C. Schwartz  24:13

Thanks so much for listening.