All my students learn about Uncle Billy; they memorize what he said upon being retained by a defendant for whom he had heretofore displayed a marked aversion: "And why are you harassing that innocent man?" The students, of course, never met Uncle Billy; what is perhaps surprising is that I never met him either.
If Uncle Billy lives today, it is because he was brought to life indeed, to something larger than life in the parables of Judge John D. Butzner Jr. of the U.S. Court of Appeals for the Fourth Circuit.
Later this month, Judge Butzner will close his chambers in the old Post Office Building at 10th and Main streets. He has been a judge of the Fourth Circuit for 33 years, and a federal judge for 38. American law is the better for his career; the American bench is the poorer for his retirement.
Butzner was born in Scranton, Pa., in 1913. He graduated from the University of Virginia Law School in 1941 and set out on his adventures with his Uncle Billy Butzner in the Fredericksburg firm of Butzner & Hicks. John Kennedy made him a district judge, and Lyndon Johnson raised him to the Fourth Circuit in 1967.
As historical figures, appellate judges seem like dusty fellows. Their working lives, to the observer's eye, are monastic, involving long days of puzzling over briefs and drafting technical opinions. Unlike their elder siblings on the Supreme Court, they may not pick and choose the cases they hear; and they are not expected to pen opinions summoning the ghosts of John Marshall and Oliver Wendell Holmes. And yet the best of them and John Butzner was one of the best comply fully with Holmes' admonition to "live greatly in the law."
I was Judge Butzner's clerk in 1991-92. When I arrived at his chambers, I associated creativity and panache with the comfortable roar of crowded newsrooms. At first I found the spacious suite of fourth-floor offices a tad over-decorous, even tomblike. And yet, as my mind quieted, I learned that the world washed through those rooms every day. Before us came cases that ran the gamut from murder and embezzlement to civil rights and bankruptcy. We did not just read about those cases; we lived them.
Butzner did not see cases as matters of theory or as opportunities for judicial preening. They were stories about the real lives of people and the sometimes crazy, sometimes noble things they did. "Don't worry about the law," he cautioned me on my first day of work, "until you understand the facts."
I had spent 15 years as a reporter. But soon I realized that I had an enormous amount to learn about how to tease a true narrative out of documents and transcripts. Never had I read so intensely as I did that year learning the stories of murder victims, satanists, insurance cheats, labor organizers, beleaguered employers, disgruntled consumers, prison inmates and injured accident victims. And as usual, I found that Judge Butzner was correct; once I had understood the facts, the task of applying the law was usually surprisingly straightforward.
First and foremost, then, good appellate judges live the life of the mind. (Butzner's intellectual vigor runs in the family; his sister, Jane Jacobs, is a noted writer on urban planning and the author of "The Life and Death of Great American Cities.") Second, they live in young people they touch. The judge and his clerks spent many an afternoon poring over draft opinions; meanwhile, we absorbed the parables of Uncle Billy and the many other colorful characters whom the Judge had met over the years. (My personal favorite was the Northern Neck politician who silenced a heckler with the words, "I'm a big dog on a big hunt and I don't have time for a piss-ant on a melon stalk.") Today, one former Butzner clerk is a United States senator. Others are government officials, judges, senior partners, prosecutors and law professors. If I am typical, then not a day goes by in which each of them does not draw on his example of fairness and lawyerlike craftsmanship.
Finally, they live in the small acts of justice they leave behind; in the rigorous interpretation of statutes; in the even-handed application of rules; in the example of courtesy and craftsmanship.
We talk about "the Greatest Generation" the men and women who carried our country to victory in the Second World War. John Butzner played his part in that drama, as a sergeant in the Army Air Force. But there was a "greatest generation" of the law as well the lawyers and judges who helped lift the curse of official apartheid from the South. For his opinions on school desegregation and employment discrimination, Butzner, like his peers on the bench, often paid the price of loneliness. He seldom complained to us about bygone insults; but he did mention an afternoon on which he arrived home to find his wife, the artist Pete Butzner, reading a local newspaper. "Hmpf," she greeted him, shaking the page. "You raped the Constitution!"
In fact, John Butzner strengthened the rule of law for nearly 40 years, opinion by opinion and fact by fact. In that greatest generation of the law, he was never the loudest or the most flamboyant. Yet his example and his works of justice will long survive his departure from the bench. Like Uncle Billy, he is one of the immortals.
Garrett Epps is associate professor of Law at the University of Oregon.
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