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December 08, 2023 Waymaker

Judge Herbert E. Phipps

By Judge Christopher J. McFadden

Judge Herbert E. Phipps was born in 1941 in Baker County, deep in southwest Georgia, a long way from the bench of the Court of Appeals of Georgia. I take personal pride in and draw inspiration from the fact that along that long road, his path and mine crossed twice.

He grew up on his grandfather’s farm. It was a time and place where the sheriff, whose name has gone down in infamy in Screws v. United States, 325 U.S. 91 (1945), had no compunction about using the N-word.

In his early teens, in the 1950s, Herb began watching trials in southwest Georgia, particularly trials in which the late attorney C.B. King was involved. Mr. King was the first and, at that time, the only Black lawyer in South Georgia.

To understand Judge Phipps’s life, you need to know a bit about attorney C.B. King.

C.B. King was the son of a World War I veteran who founded the local branch of the National Association for the Advancement of Colored People in Albany. Denied access to Georgia’s whites-only law schools, C.B. King traveled to Cleveland, Ohio, and enrolled at Western Reserve Law School, later the law school of Case Western Reserve University. He graduated in 1953 and then returned to Albany to start his law practice.

He was not welcomed by the white establishment. There were many indignities. In 1962, when Mr. King visited a jail to check on a white civil rights protester whose white fellow prisoners had broken his jaw, Sheriff Cull Campbell assaulted Mr. King with a cane.

His practice was shaped by the recognition that, while his authority as an attorney to step across the bar and speak on behalf of his clients would be respected—most of the time, it would be respected only grudgingly. And he would be allowed no margin for error.

He was extraordinarily able and extraordinarily diligent. He was knowledgeable of the law and knowledgeable generally. His vocabulary was particularly remarkable. Rep. John Lewis, a client, once remarked that C.B. uses words that only C.B. knows. The federal courthouse in Albany, Georgia, is now named for him.

Young Herb often visited C.B. King’s law office to talk with him about his law practice and the mistreatment of Black people. Herb watched Mr. King battle a great many injustices.

Of a particularly vivid such episode, Herb writes,

One afternoon in the early 1960’s, he [Mr. King] invited me to accompany him and William Kunstler to court where they represented dozens of civil rights protestors who had been arrested for marching against segregation in a small South Georgia town. The protest had infuriated White residents, and the courtroom was packed with spectators.

After hearing evidence and arguments, the judge summoned King and Kunstler to his chambers. I boldly followed them. In chambers, the judge told King and Kunstler that their position was legally correct and that the charges should be dismissed. “But,” he said, “I am not going to dismiss the charges or set bail because I have to live in this little town.” This judge did not have the professional or personal courage to do what was right by Black citizens because doing so would have angered White citizens.

It was a remarkable confession. And I wonder what motivated him to make it. The sin he confessed was enormous. It is Pilate’s sin. Those of us who are judges, and particularly those who profess a Christian faith, do well to recall that the one sinner who has been condemned by name in thousands of millions of voices, whenever the Creed is recited, was exercising judicial authority and that his sin was the sin of cowardice. It was a remarkable confession not only for the enormity of the sin but for its candor.

Law is complex, and judges are often required to administer rules with which they disagree. So, judges who succumb to Pilate’s temptation can usually do a pretty credible job of hand washing—often credible enough to persuade the judges themselves.

I do not know what drove that South Georgia judge to that extremity of candor. Perhaps it was an arrogant display of power. Perhaps supper was waiting at home and he had to get to it, and he hoped that Mr. King and Mr. Kunstler would understand. If so, I have no doubt that they did their best to disappoint him. Perhaps it was genuine remorse. Regardless, that naked display of cowardice left a strong impression on Herb.

At around this same time, in the fall of 1961, when Herb was 19, the Albany Movement began. Three young workers from the Student Nonviolent Coordinating Committee (SNCC) came to the Albany area to conduct a voter registration drive. Many of those who took part—including Herb—were rounded up and arrested.

So it was that Herb found himself in a jail cell beside the Rev. Dr. Martin Luther King Jr. Herb was held for a couple of days and then released. He would later work for Dr. King in Atlanta.

Herb received one particularly valuable piece of advice from attorney King that he has made it his mission to pass on: “Always be on your best professional and personal behavior because you cannot fight and beg at the same time.”

Herb went on to earn his BA from Morehouse College, graduating in 1964. At Morehouse, he embraced a tradition that reinforced what he had learned from Mr. King: A Morehouse man is well-read, well-spoken, well-dressed, well-traveled, and well-balanced.

And so, for a time, he traveled.

He traveled to Vietnam with the International Voluntary Services, until the Vietnam War cut that short. Then he traveled extensively in Europe and Asia, teaching English at Thammasat University, Thailand’s second oldest institute of higher education, and in private schools in Bangkok.

Then he set about his life’s work in earnest. Like Mr. King, he enrolled in law school at Case Western Reserve University in Cleveland. He earned his JD in 1971 and then went back to the South to continue his pursuit of a certain dream.

This is the basis for my claim that our paths crossed twice. I am a native of Akron, Ohio, some 40 miles south of Cleveland. At around the time Herb started law school classes, I held the bible for my father as he first took his oath of office as a trial court judge. Herb and I never met during this time, so in that sense, my claim is a stretch.

But my claim has a deeper basis. Five years after Herb went back to the South, I was presented with a scholarship offer from Atlanta’s Oglethorpe University. My decision to come South was very much influenced by the great work in which Herb had taken part. Much remained and remains to be done. But this country was a very different place in 1976 than it had been when Herb started watching C.B. King try cases. And more important from my perspective that spring, the South was a very different place. The South in which he began his life’s journey is not a place to which I would have chosen to come. So, although I would not meet him for another 23 years, when I came to the South, I was, in a real sense, following Herb Phipps.

Back in Albany, Herb joined Mr. King’s law practice, which would in time become King, Phipps & Assoc. The firm emphasized civil rights litigation. Former Justice Robert Benham, the first African American to sit on the Supreme Court of Georgia, was then doing similar work from his law office in northwest Georgia. He handled such cases all over the state—but never anywhere near Albany. Herb and C.B., he told me, had that area well covered.

The lesson Herb absorbed from Mr. King, at Morehouse, and at Case served him well. He developed a fine reputation as a lawyer. And in 1980, he was appointed part-time magistrate and associate judge of the Dougherty County State Court. In 1988, he was appointed judge of the Juvenile Court. In 1995, Governor Zell Miller appointed him judge of the Dougherty Circuit Superior Court. In 1999, Governor Roy Barnes appointed him to the Court of Appeals of Georgia. From July 2013 to June 2015, he served as our chief judge. He retired from active service in 2016 but has repeatedly returned as a senior judge when we needed him.

When I joined the Court of Appeals in 2011, he was my first presiding judge. It is a source of pride and inspiration to me that when I first took the bench, the judge sitting beside me in the center chair had once sat in a jail cell beside Dr. King.

Judge Phipps is and has been an inspiration to many others as well. He is an exemplary lawyer and an exemplary judge. And that is quite a lot. But he is more than that. He is a personification of an ideal.

Intelligence is useful to a judge. Diligence and patience are vital. Wisdom is devoutly to be wished for. But the seminal virtue is courage. Without it, the others are pale puny things that fail when put to the test.

Judge Phipps is the personification of the ideal that judges and lawyers are called on to exercise courage and to conduct themselves with the rectitude that makes courage possible.

Judge Christopher J. McFadden

Court of Appeals of Georgia

Judge Christopher J. McFadden is a presiding judge of the Court of Appeals of Georgia, on which he has served since 2011, and is chair-elect of the Appellate Judges Conference. He is a graduate of Oglethorpe University in Atlanta and of the University of Georgia School of Law.

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