Fighters for Justice - Hon. Damon J. Keith

* Professor of Law, Wayne State University. B.A., 1965, Wayne State University; J.D., 1970, Detroit College of Law; LL.M., 1974, Jur. Sc. D., 1982, Columbia University.

SUMMARY: ... Damon J. Keith, the man and judge, is a "son" of Detroit. ... After being accepted at the University of Detroit Law School, he had a conversation with Dr. John W. Davis, who was still the president of West Virginia State College. ... Also clerking with Keith at the Loomis firm were several other neophyte attorneys who would become prominent lawyers in their own right: Charles Smith; Jeanne Cole-Harbour, one of the earliest black women to practice law full-time; and Lonnie Snowden, who graduated first in his law class at the Detroit College of Law and who Keith describes as "an absolutely brilliant lawyer. ... We [black lawyers] had to struggle to get case assignments from the bench. ... Employment discrimination: Stamps v. Detroit Edison Co. ... In 1974, the Detroit Board of Education named the Damon J. Keith Elementary School in honor of Judge Keith. ... The Keiths met while Rachel, a native of Liberia and a Boston University Medical School graduate, was completing her residency at Detroit Receiving Hospital. ... As a judge and a citizen, Judge Keith for more than forty years has demonstrated a devotion to the Constitution and a profound love and respect for the law as a means of social change. ...

TEXT: [*321] Judge Damon J. Keith became senior judge of the U.S. Court of Appeals last year. Many tributes followed. More will come. None, however, will likely capture fully Judge Keith's importance to American civil rights jurisprudence. He was a federal judge during periods that were critical in the formation of our contemporary civil rights jurisprudence. That he was bold and decisive when many others were not bespoke his status as a living legend. Times change. Politics and the laws change. Today, conditions and trends, social and economic as well as political, forecast powerfully that we will not have another "Damon" among us for years, if ever.

This article is a brief attempt to chronicle the distinguished career of an extraordinary man who became lawyer and judge. It is also a way for a profoundly grateful alma mater to once more say: "Thank you." We are proud, not only because of a legendary career that we somehow share, but also for the caring and the decency that are hallmarks of Keith, the person. We commend his standards to our students. Future generations, citizens as well as students, will know of him, his work and his legacy through the soon to be endowed Damon J. Keith Law Collection at Wayne State University.

[*322] Damon J. Keith, the man and judge, is a "son" of Detroit. He is the youngest of six children born to Perry and Annie Louis Keith. His siblings were all born in Georgia, before his father found work at the Ford Motor Co. and moved the family North to Detroit. Keith recalls that "growing up in a large family was truly wonderful. I was blessed with a loving and caring mother and an industrious father." Keith's father, while working at Ford, ran a part-time real estate business - P.A. Keith & Sons Real Estate. "There was a great deal of emphasis on education in my family and my dad was determined that I would be the first of his children to attend college - he insisted on that." Judge Keith's total pre-college education was in the Detroit Public Schools. He completed the Columbian Elementary School, McMichael Intermediate and graduated from Northwestern High School. At Northwestern, he was an honors student and earned three varsity track letters. "Northwestern had a great influence on me," Keith remembers, "particularly Coach Sam Bishop, who encouraged us to succeed beyond athletics. I also remember that throughout my entire public school education, I never experienced learning with an African American teacher. I never dreamed of becoming a lawyer as I didn't know any and, in fact, we had virtually no professional role models to emulate."

Judge Keith's concern over the lack of teachers of color soon ended. Shortly after he applied to Wayne State University, the University of Detroit and the University of Michigan, a cousin, Mrs. John W. Davis, who was married to the President of West Virginia State College, visited Detroit. West Virginia State was an all-black college. His cousin urged Damon's parents to let him enroll in West Virginia State. They agreed and a move to West Virginia was hastily arranged for the young Damon. Today, when Keith speaks of his undergraduate years he is visibly animated.

West Virginia State was an eye-opener for me. For the first time I saw black Ph.D.s, a black college president, and most importantly, I saw and listened to the great black leaders of the day who visited the college to speak to the students. [*323] Among those who came were: G. Carter Woodson, Mordicai Johnson, Benjamin Mays, Adam Clayton Powell, Channing Tobias, and Mary McLeod Bethune. It was as if I had awakened from a deep sleep; as if someone had lifted cataracts off my eyes.

The euphoria that Keith experienced in college was short-lived. He graduated in 1943 and with degree in hand was drafted into the segregated U.S. Army. He served for three years in what was then described as an "all-colored" unit. Similar to many World War II African American soldiers, Keith, a college graduate, was inducted as a private, the military's lowest rank, and was assigned to the quartermaster corps. "We drove trucks and took care of the other soldiers' supplies." By the time he was discharged in 1946, Keith was staff sergeant. "I remember my military experiences as being so absolutely demeaning. Every single officer in our 'all-colored' outfit was white - the captains, the lieutenants - we had no black officers."

A fellow Detroiter, Thomas Neusome, was in Keith's army unit and he became Damon's closest friend. Neusome, who had attended the Detroit College of Law, constantly encouraged Damon to study law. By the time they were discharged, Neusome's persistence had won. Keith wanted to be a lawyer. "By then I had seen more than enough injustices and I became convinced that the law was the way to eradicate the wrongs I had seen and experienced."

Damon's selection of a law school followed the same fortuitous pattern that led him to West Virginia State. After being accepted at the University of Detroit Law School, he had a conversation with Dr. John W. Davis, who was still the president of West Virginia State College. Once he learned of Damon's plans, Dr. Davis urged him to apply to the Howard University Law School. "He was very persuasive. He talked about justice and fair play and how Howard University was the best place for black lawyers to train for civil rights work. He was right."

Keith's experiences at Howard were the most indelible and enduring of his legal career. There he learned about the [*324] [*325] Constitution, its importance to black people and how it was the best means for achieving equal justice under the law. The scope of the work to be done, however, was also evident. Keith had classmates from the deep South who went to Howard because their home states maintained white-only law schools. Washington, D.C., the home of Howard University and the nation's capital, was also segregated. Keith recalls that, "the only place we could eat a meal in downtown D.C. was the Union Station. Experiencing segregation first-hand was good for me, in a sense. To this day, I have never forgotten how deeply and severely racism affects its victims."

Before Keith enrolled at Howard, the legendary Charles H. Houston, the law school's former dean, had already established a cadre of black civil rights lawyers who met there and worked on major civil rights cases. These lawyers led the legal assaults on segregation throughout the country. Keith, the student, did well at Howard. His classmates elected him the Chief Justice of the Court of Peers, the student government body. But more significantly, "I participated, as did other Howard students, in the mock trials these great black lawyers routinely held at the law school." Howard students were very much involved in the preparation of important civil rights cases. As Keith recalls, "we helped with the research and listened to the arguments of these outstanding lawyers - occasionally we made suggestions as they polished their theories and presentations. The next week or so we would go to the U.S. Supreme Court and hear our professors argue their cases before the Supreme Court. We were blessed to have had these unique and everlasting experiences."

Damon was easily captivated by the excitement at Howard and was indelibly marked by what he saw there.

Through Howard, we came to know these lawyers who are legends today in African American legal history. They included: Charles H. Houston, Thurgood Marshall, William H. Hastie, Jr., who later became America's first black federal judge; James M. Nabrit; Spottswood W. Robinson; [*326] [*327] Marian Wynn Weyand; George E. C. Hayes; George M. Johnson; Loren Miller, the author of The Petitioners; and William R. Ming, who became America's first black professor at a white law school. They taught us that the Constitution was our best hope; that equality would come through the law. Their influence on me was profound and permanent. I left Howard feeling excited about the Constitution and individual rights, as I am today. I was anxious to return to Detroit - a new young lawyer, eager to practice law.

Judge Keith began his legal career as a clerk with Loomis, Jones, Piper & Colden, a prominent black firm that helped many young lawyers enter practice. Also clerking with Keith at the Loomis firm were several other neophyte attorneys who would become prominent lawyers in their own right: Charles Smith; Jeanne Cole-Harbour, one of the earliest black women to practice law full-time; and Lonnie Snowden, who graduated first in his law class at the Detroit College of Law and who Keith describes as "an absolutely brilliant lawyer."

Before 1950, there were no black judges in Michigan and few black lawyers were hired in key government posts. In the late 1940s, with the urging of Alfred Pelham, an influential black leader in county government, the office of the Friend of the Court decided to hire its first black attorney. Keith won the post. Four years later, however, he left government service to begin his own firm.

Although private practice in the 1950s was exceedingly difficult for black attorneys, Keith launched what quickly became a very prestigious firm. "As my practice expanded I couldn't handle all the work, so I started looking around for the brightest young legal minds I could find - and I found them." Joining Keith in what eventually became Keith, Conyers, Anderson, Brown & Wahls were recent law graduates: Nathan Conyers and Herman Anderson from Wayne State University; Joseph N. Brown, from the University of Detroit; and Myron H. Wahls, from the Northwestern University Law School. Joseph N. Baltimore joined [*328] the firm later.

Judge Keith recalls his former partners with particular pride:

They were all brilliant lawyers and, as you know, each has achieved great success either in practice, in business or on the bench. I have always been proud of them and for what we accomplished when it was exceedingly difficult for black lawyers to build successful firms. All the members of our firm were active in the National Lawyers Guild (NLG). I especially remember the NLG project that sent lawyers down South to help with civil rights, voting rights and other human rights issues. We were heavily involved.

Looking back with obvious excitement, Keith recalls both the good and the bad for black lawyers who practiced over three decades ago: "I loved getting up every morning to go to the office - it was exciting. We represented the major black companies in Detroit, such as, the House of Diggs and the Stinson Funeral Homes, the Great Lakes Mutual Insurance Co. as well as the Diggs Insurance Co. and baseball star Willie Horton." "Whillie the Wonder," was a star athlete at Northwestern High School, Keith's alma mater. Keith, who was also Horton's legal guardian, negotiated what was then an enormous signing bonus for Horton with the Detroit Tigers - $ 50,000.00.

Among the many problems black lawyers experienced, none, in Keith's judgment, was more damaging than the absence of black judges. "Many of the white judges simply were not nice to us - they didn't treat us as they did other lawyers, with dignity and respect. Some were actually outright mean, if not nasty, and belittling in their dealings with black attorneys." On the business side of law practice, Keith is still mindful of the pivotal role of judges not only in the administration of justice, but in shaping lawyers' practices, particularly financially.

We [black lawyers] had to struggle to get case assignments from the bench. In addition, clients saw or knew how [*329] poorly black lawyers were treated in court. Many of the black citizens in Detroit came from the South and they knew, first-hand, about racism in the legal system and how it could determine the outcome of their case. Judges, as much as any aspect of the legal system, caused many black clients to shun black lawyers.

Years later, when Keith became a judge, his experiences in court as a young lawyer made him ever mindful of how powerful and influential judges are: "I am constantly alert to treat the lawyers who appear before me with the dignity and respect they deserve as officers of the court - something that black lawyers often didn't get when I practiced. In my twenty-nine years on the bench, I have never held nor threatened to hold a lawyer or anyone else in contempt of court." In his autobiography, My Life as a Radical Lawyer (1994), William M. Kunstler referred to the White Panther case (United States v. Sinclair) that he tried before Judge Keith in 1970. Kunstler wrote:

In Chicago, where Judge Hoffman turned off and didn't want to deal with anything and the marshals in the courtroom were often confrontational, the defendants reacted accordingly. But the White Panther case was very different. I am often asked how judges can stop disruptive trials. One answer is to have more judges like Damon Keith. On the first day of trial, he called the prosecutors and defense lawyers into his chambers for a conference; he served, as I recall, very delicious buns and coffee. He broadly hinted to Len and me that he did not expect this trial to be similar to Chicago. We assured him that unless we had the same type of provocations that permeated the Chicago trial, we didn't expect any difficulties.

Keith was a private lawyer for seventeen years. Much of his firm's practice and community service was devoted to civil rights. Keith, himself, amassed an extraordinary record of service to his [*330] [*331] community and to the Democratic Party, in which he became an important leader and one of its most diligent workers. While his accomplishments as a civic and political leader were singular, he notes with particular pride his tenure as chair of a newly created Michigan Civil Rights Commission, from 1964-67, and the nine years, from 1958-67, when he served as President of the Detroit Housing Commission. As a young lawyer and community leader, Keith demonstrated early the courage and the compassion that later exemplified the federal judge uncommonly devoted to the Constitution and what is promised.

In 1967, President Lyndon B. Johnson appointed Judge Keith to the United States District Court for the Eastern District of Michigan, where he was the Chief Judge from 1975 to 1977. In 1977, he was elevated to the United States Court of Appeals for the Sixth Circuit by President Jimmy Carter. As a member of the federal judiciary, Judge Keith was consistently a courageous defender of constitutional and civil rights. Accordingly, it is not surprising that his most important decisions involved public law cases that defined fundamental and far-reaching rights. Among these cases are:

School Desegregation: Davis v. School District of City of Pontiac, Inc. (1970).

Evidence obtained through warrantless electronic surveillance ("The Keith Decision"): United States v. Sinclair (1971).

Housing discrimination: Garret v. City of Hamtramck (1971).

Employment discrimination: Stamps v. Detroit Edison Co. (1973).

Municipal affirmative action plan: Baker v. City of Detroit (1980).

U.S. Census undercount of urban populations: Young v. Klutznick (1981) (Keith, J., dissenting).

[*332] [*333] Affirmative action and remedies for prior employment discrimination: Detroit Police Officers Association v. Young (1979); Stotts v. Memphis Fire Dept. (1982).

Jury selection and pre-trial publicity in a criminal case: United States v. Blanton (1983) (en banc) (Keith, J., dissenting).

Sex discrimination: Rabidue v. Osceola Refining Co. (1986) (Keith, J., concurring in part and dissenting in part).

Many of Judge Keith's decisions made national banner headlines: "Supreme Court refuses to upset Keith Ruling on Pontiac Bussing" (Detroit News, Oct. 26, 1971); " Damon Keith: Black Judge In the Eye of the Bussing Storm" (Jet, 1971); "Detroit's Damon Keith: Two Decisions That May Make History" (Detroit News, June 11, 1971); "The Judge In the Wiretapping Case: Man In the News" (The New York Times, June 20, 1972); "Injustices Must Be Corrected" (Hamtramck housing discrimination cases - Detroit Free Press, Oct. 11, 1974); "Edison will pay $ 5 million to settle landmark bias suit" (Detroit Free Press, Aug. 11, 1979); "Orders Detroit Edison to Pay Blacks $ 4 Million" (Jet, 1979); "Keith Ruling on Police More Vital than Bakke" (Columnist Carl T. Rowen regarding DPOA v. Young - Detroit News, Oct. 15, 1979).

In Sinclair, which is commonly known as "The Keith Decision," and is arguably Judge Keith's most famous opinion, he ruled that the Attorney General does not have the right to tap wires in domestic cases without a court warrant and that the Fourth Amendment requires the federal government to disclose taped conversations obtained through illegal electronic surveillance. Sinclair was upheld by a unanimous U.S. Supreme Court, as was Keith's opinion in the Davis case. Both were reported widely in legal journals. The Sinclair case is also the focus of a recent doctoral dissertation: Wiretapping and National Security: Nixon, The Mitchell Doctrine, and the White Panthers (1995), by Jeff A. Hale at Louisiana State University.

[*334] [*335] In 1985, Chief Justice Warren Burger appointed Judge Keith as the Chair of the Committee on the Bicentennial of the Constitution of the Sixth Circuit. Two years later, Chief Justice William Rehnquist appointed him the National Chair of the Judicial Conference Committee on the Bicentennial of the Constitution. In 1990, President George Bush, in recognition of Judge Keith's contributions to the development of constitutional law, appointed him to the Commission on the Bicentennial of the Constitution.

Under Judge Keith's leadership, over three hundred Bill of Rights plaques have been placed in courthouses and law schools throughout the United States and Guam. In October, 1991, the Commission on the Bicentennial of the Constitution in celebration of the Bill of Rights held a three-day conference that included over 350 federal judges, the largest gathering of the federal judiciary in American history. For his work as Chair of the Judicial Conference Committee, Judge Keith received a special resolution of commendation from the Judicial Conference. He was also the Chair of the Fortieth Anniversary Conference of Brown v. The Board of Education, held May 17-18, 1994 at the College of William Mary, Marshall-Wythe School of Law.

In addition to his judicial opinions, Judge Keith has published a number of scholarly articles. His writings appear in the University of Michigan Law Review, the Harvard Civil Rights/Civil Liberties Law Review and the University of Detroit Journal of Urban Law. In recognition of his achievements, the academic community, including Yale University, the University of Michigan, Georgetown University, Howard University, Ohio State University, the College of William and Mary, and Wayne State University, has bestowed upon Judge Keith a total of thirty honorary doctorate degrees. In 1974, the Detroit Board of Education named the Damon J. Keith Elementary School in honor of Judge Keith.

Judge Keith's peers within the nation's leading civil rights and service organizations have also recognized his devotion to the Constitution and equality under law. In 1974, he was a recipient of the NAACP's prestigious Spingarn Medal. Other Spingarn winners [*336] [*337] include: Justice Thurgood Marshall; Dr. Martin Luther King, Jr.; and the "Mother of the Civil Rights Movement," Mrs. Rosa Parks. The Spingarn Award notes particularly Judge Keith's decisions in the "Keith Case" and the "The Detroit Edison Case," which, in addition to providing new job opportunities for black workers, was, at the time, the largest damage settlement in an employment discrimination case against a single company. In 1988, Judge Keith received the Distinguished Public Service Award by the National Anti-Defamation League of B'nai B'rith. In 1989, he was the co-recipient with General Colin Powell of the One Nation Award from the Patriots Foundation in Washington, D.C., and in 1992, the National Bar Association honored Judge Keith with the C. Francis Stratford Award. In addition, for over twenty consecutive years he has been selected by Ebony magazine as one of the "One Hundred Most Influential Black Americans."

Judge Keith's humanitarian efforts have not been limited to national concerns. In 1976, he travelled to the former Soviet Union to show support for Soviet Jewish Refusniks. While there, Judge Keith met with Andrei Sakharov and Anatoly Scharansky to address the issue of international human rights.

In 1995, the Detroit Legal News, on the occasion of its centennial, named sixteen Detroit lawyers as legal legends (Detroit Legal News: One Hundred Years of Detroit Law, Centennial Book, Oct. 1995). Among those few who were honored for singular achievements during the preceding 100 years was Judge Keith. The Legal News, noting that Keith's legal rulings alone qualified him as a legal legend, also wrote:

For almost three decades Judge Keith has used his position as a federal judge to bring the people of Detroit together. Despite powerful economic and political forces working against the City, the judge has been an inspirational standard bearer for everyone who believes that the City can be - and must be - revitalized. The United States Constitution, which is supposed to protect the noble concept of equality, is an essential part of his quest.

[*338] [*339] On November 4, 1993, Wayne State University announced the creation of the prestigious Damon J. Keith Law Collection, a unique historical archival collection devoted exclusively to African Americans and the law. The Collection, which will be housed on campus at the Walter P. Reuther Library will contain the papers, records and photographs of prominent African American lawyers and judges, including Keith's. Raising the endowment to guarantee that the Keith Law Collection will endure as a one-of-a-kind national treasure is ongoing. Judge Keith, who, now that he has senior status, will work on the Collection and its many educational programs, believes that "the archive that bears my name will last the longest of the many honors I have received." This project, which is constantly growing, has already received major collections from nationally prominent civil rights lawyers.

As a husband and father, Judge Keith has been blessed by the support and devotion of a loving wife of forty-two years, Dr. Rachel Boone-Keith, M.D. and three daughters, Cecile, Debbie and Gilda. The Keiths met while Rachel, a native of Liberia and a Boston University Medical School graduate, was completing her residency at the Detroit Receiving Hospital. They were married in 1953. Damon, the father, speaks with obvious pride of his children, their talents and their successes. Cecile Keith-Brown is married to Daryle Brown and is the mother of Nia Keith Brown and Camara Keith Brown, Damon and Rachel's two grandchildren. Cecile is an honors graduate from the University of Michigan and has a masters degree in fine arts from the California Institute of the Arts. Debbie graduated from Princeton University and received a masters degree in languages from New York University. Gilda attended Duke University before transferring to Oberlin where she majored in English and Music. Later, she studied flute at the Boston Conservatory.

As a judge and a citizen, Judge Keith for more than forty years has demonstrated a devotion to the Constitution and a profound love and respect for the law as a means of social change. While a dynamic force in the law, he remained a gentle and caring man. His life, off the bench as well as on, has earned him the passionate [*340] [*341] respect of a multitude of friends and admirers, and through all of us, collectively, the gratitude of a nation.

Keith, the senior judge, recently spoke to this writer about his twenty-nine years on the federal bench and about himself - the man as well as the judge:

I've enjoyed my years as a judge. However, there's not a day that goes by that I am not reminded that I am an African American. I will continue to work and devote my energies to a time when a person will not be judged by the color of their skin, their religion, or their gender but by their intelligence, their character, and their devotion to helping people. These have been exciting times. I always knew how rampant discrimination was, and I always kept a sharp focus on the Constitution and its importance for social change.

Regrettably, I find myself dissenting more today than in the past, but I continue to be encouraged. Very recently, the Supreme Court unanimously upheld most of my dissent in the Rabidue sex harassment case.

I am thankful to God that I am on the second highest court in the country and have had the opportunity to practice a personal philosophy that is so deeply engraved in me - that whoever you are, you should work to make things better - to make a difference. I hope that when others think of me, they will see a person who believed in the Constitution and who tried to use the law to make things better - to make a difference.