In concluding the Diversity, Equity and Inclusion Committee’s inaugural salute to pioneering Litigators and Jurists of Color, I considered it appropriate to spotlight the first African American Judge for the Eastern District of Pennsylvania, A. Leon Higginbotham, Jr. Since most of my practice is in the Eastern District of Pennsylvania, I believe it is important to know the judges of the Courts where you practice and the history of the bench. Frankly, there are few more fascinating Judges than A. Leon Higginbotham, Jr. He was a civil rights advocate, author, federal district court judge, federal appellate court judge and an American Medal of Freedom recipient.
Aloysius Leon Higginbotham, Jr., or Leon to his contemporaries was born near Trenton, New Jersey, in 1928. He was the son of a factory worker and a maid who grew up in a predominantly African American neighborhood. Higginbotham attended segregated grammar and high school, which reminds us that even New Jersey in the 1930s and 40s was still segregated. Higginbotham was a gifted student and initially considered becoming an engineer. Indeed, Higginbotham enrolled in the Purdue University School for Engineering in 1944. At the time, the student body consisted of 6,000 white students and twelve African American students. The twelve African American students were not permitted to reside in the dormitories with the white students and instead lived in a house known as the “International House.” The students were forced to sleep in the attic of the building which was unheated. Higginbotham arranged for a meeting with the University’s President, Edward C. Elliot, to seek permission to stay in one of the heated dormitories. Elliot’s response was “[t]he law doesn’t require us to put you in those dormitories. The law doesn’t even require us to let you in. You can take it or leave it.”
To Higginbotham, this brush with authority and its interpretation of the law caused him to reconsider his career track from engineering to law. He later stated, “And then, even though I had been doing very well there, I decided that engineering would not make any difference in America. The most which a black person could do as an engineer is to make a better gadget, but a gadget which would not significantly do anything with the oppression. So, I guess on that trip back to the segregated house, International House, I decided I wanted to go into law and to challenge the system.”
Higginbotham transferred to Antioch College and later went on to Yale Law School. While in Law School, Higginbotham witnessed Thurgood Marshall argue before the Supreme Court concerning a decision to deny admissions of African American applicants to the University of Texas. He described seeing Marshall argue: “with controlled outrage, Marshall eloquently asserted the constitutional promise of equality for Sweatt [the litigant], for all African Americans and, it seemed, for me personally.” The Court ruled in favor of Sweatt and Higginbotham later wrote, he felt like he had “witnessed the birth of racial justice in the Supreme Court.”
Higginbotham used this sense of justice in his legal career and he relocated Philadelphia. Although he had exceptional credentials, he could not find a job with any of the top law firms in the City because of his race. He did secure a clerkship with Judge Curtis Bok of the Philadelphia Court of Common Pleas. His career blossomed from there. He served as an assistant district attorney for Philadelphia and became the first African American to argue a case on behalf of the Commonwealth before the Philadelphia Court of Common Pleas. He then went into private practice as a member of the first African American law firm in Philadelphia – Norris, Schmidt, Green, Harris and Higginbotham.
Higginbotham began to attract the attention of Washington. He was heavily involved with the NAACP and, although his delegation had supported Hubert Humphrey over John F. Kennedy in the Democratic Primary, President Kennedy appoint Higginbotham to be a commissioner for the Federal Trade Commission. He was the first African American to be appointed as a commissioner on any regulatory commission. Higginbotham became a strong supporter of President Kennedy. President Kennedy nominated Higginbotham to be a judge on the Eastern District of Pennsylvania in 1963. His nomination was held up by Mississippi Senator, James Eastland, a committed Segregationist. His nomination lapsed when President Kennedy was assassinated. However, President Johnson appointed Higginbotham to a seat vacated on the United States District Court for the Eastern District of Pennsylvania during a recess appointment. He was confirmed by the Senate on March 14, 1964.
As a Judge, Higginbotham confirmed that justice was color blind. He heard many cases on the issue of race and affirmative action. Ultimately, his judicial philosophy and temperament garnered the attention of President Carter, who in September of 1977, nominated Higginbotham to the United States Court of Appeals for the Third Circuit. The Senate late confirmed his nomination. Judge Higginbotham would later describe his judicial philosophy as rejecting the strict constructionist concept, in favor of “an evolutionary concept in terms of what is fair and just in a society.”
While on the bench, Higginbotham was an adjunct professor at the University of Pennsylvania. He would later teach at the John F. Kennedy School of Government after he retired from the bench. In 1995, President Clinton awarded him the Presidential Medal of Freedom for his strong work in civil rights and providing justice from the bench. Higginbotham later would provide testimony in support of President Clinton during his impeachment trial. He argued that the underlying offense to which President Clinton perjured himself did not rise to the level of a high crime and misdemeanors that the framers had envisioned.
Judge Higginbotham was a champion of equality and civil rights both as an attorney and judge. He envisioned equality and justice for all and sought to obtain it. He is someone worthy of commemoration and respect.
Pond Lehocky honors Judge HIgginbotham, and all the litigators of color we’ve spotlighted this month. We hope to honor their legacy by remaining fervent champions for our clients.