July 19, 2022 Feature

“Democracies Die Behind Closed Doors” Damon J. Keith, In Memoriam

While participating in numerous groundbreaking decisions, Judge Keith actively and purposefully changing the landscape of the legal profession by hiring and mentoring a record-breaking number of diverse law clerks.

Mitra Jafary-Hariri and Alex L. Parrish

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Damon J. Keith may have been the greatest American jurist never to have sat on the Supreme Court, and certainly the staunchest on behalf of civil rights for all and government conducted in the open, to be seen by all.

Peter J. Hammer & Trevor W. Coleman, Crusader for Justice: Federal Judge Damon J. Keith, at xvii (Wayne State Univ. Press 2014).

Judge Keith passed away in April 2019 at age 96, after having served for more than half a century on the federal bench. He is remembered for his many seminal decisions as both a federal district judge for the Eastern District of Michigan and federal appellate judge on the Sixth Circuit. He sat in judgment on a long line of major civil rights and civil liberties cases from 1967 to 2019—stretching from the Lyndon B. Johnson administration to that of Donald J. Trump. While participating in the numerous groundbreaking decisions, he was actively and purposefully changing the landscape of the legal profession by hiring and mentoring a record-breaking number of diverse law clerks.

Judge Keith’s time on the district court was monumental. His ascension to the bench coincided with a time of political tumult and racial foment in our nation’s cities. Some of his major cases addressed issues of race and police conduct.

In Davis v. School District of the City of Pontiac (1970), the first major federal school desegregation case in the North, Judge Keith found the school district responsible for systemic discrimination and pervasive segregation in student assignments and staffing, and he ordered the school district to adopt comprehensive measures to racially integrate the system completely. In the precedent-setting case of Stamps v. Detroit Edison (1973), he found both the major corporate employer, Detroit Edison, and its labor union responsible for widespread employment discrimination, and he ordered them to pay significant fines and adopt groundbreaking affirmative action measures. In Garrett v. City of Hamtramck (1971), he found the city to be improperly engaged in “Negro Removal” and ordered the city to rebuild public housing. His Baker v. City of Detroit (1979) case led to significant police hiring reform in Detroit, 40 years before other communities grappled with those issues in the wake of the George Floyd murder.

One of his most cited opinions is United States v. Sinclair (1971)—also known as the “Keith Decision.” Members of the radical White Panthers party were accused of bombing a Central Intelligence Agency recruitment office in Ann Arbor, Michigan. President Nixon and U.S. Attorney General John Mitchell had authorized a warrantless wiretap of the defendants in the name of national security. Judge Keith held that even in cases of national security, a president and an attorney general may not conduct domestic wiretap surveillance without a warrant. Before this decision, no court had ever questioned a president’s claim of inherent executive power to conduct domestic electronic surveillance. However, Judge Keith did so and eloquently wrote that the “Fourth Amendment protects a defendant from the evil of the uninvited ear.” He wrote that the procedure of obtaining a warrant was necessary and constitutionally mandated because it “inserts the impartial judgment of the Court between the citizen and the Government.” In an extraordinary and unprecedented response, President Nixon sued Judge Keith personally. The case went all the way to the Supreme Court of the United States, which affirmed Judge Keith in a unanimous 8–0 decision.

History sometimes repeats itself; and for Judge Keith, it did. More than 30 years after the Keith case, Judge Keith faced a similar controversy as an appellate judge. This time, the case involved President George W. Bush and U.S. Attorney General John Ashcroft. They had adopted a policy of holding certain deportation hearings in private, excluding the public and the news media. Once again, the justification was national security. However, in his opinion for the court, Judge Keith rejected this policy. He wrote: “A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution.” He wrote further: “When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.” And he closed his opinion with his now-famous words: “Democracies die behind closed doors.” Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).

Judge Keith’s life and background likely played a role in shaping his judicial career. Born on the Fourth of July, Judge Keith was the grandson of former slaves. His family was a part of the “Great Migration” of Black families to the North that occurred in the early part of the 20th century. He served in the segregated U.S. Army during World War II, and after his discharge, he attended Howard University Law School in Washington, D.C. There he came under the tutelage of civil rights law giants Thurgood Marshall, Charles Hamilton Houston, James Nabrit, and others who were planning the judicial overthrow of Jim Crow.

After graduating from law school, Judge Keith returned to his hometown of Detroit and picked up the mantle of public service from his Howard professors and mentors. He was a community organizer long before the phrase was in vogue. He founded the leading African American law firm in Michigan of its day, and he served as the founding cochairman of the Michigan Civil Rights Commission.

Judge Keith’s five decades of extraordinary work on the bench were widely recognized during his lifetime. Buildings are named in his honor at his college alma mater, West Virginia State University, and his second law school alma mater, Wayne State University. At Howard University, where he earned his juris doctorate, the law school’s moot courtroom is named for him. Judge Keith received over 30 honorary degrees from universities such as Harvard and Yale. He was appointed to national committees and commissions by the chief justice of the U.S. Supreme Court, and among other recognitions, he received the coveted Devitt Award in 1998. The Devitt Award is given each year by the American Judicature Society to one Article III judge in recognition of highly distinguished service.

In nominating Judge Keith for the Devitt Award, his colleague Judge Peter Fay said:

One cannot be around Damon for very long without sensing his commitment to all that is good about our country. But unlike many, he does not limit his commitment to words—his actions speak volumes. He gets involved. He spends his time. He does the work. Yes, he gets his hands “dirty” because there is nothing he will not do if he is convinced it will help others and strengthen our way of life.

Judge Fay’s words bring to mind Judge Keith’s lifelong commitment to diversity and inclusion within the legal profession. As Judge Fay would put it, Judge Keith did more than use “words.” Rather, Judge Keith made it his lifelong practice to use his hiring decisions to offer opportunities to a wide range of young attorneys. Year after year, by his personal example, he showed the judiciary that it was possible to make dramatic gains in diversity and inclusion in the legal profession, if there was a will to act on the part of decision makers. None of his contemporaries in the federal judiciary came close to matching Judge Keith’s progressive hiring practices. His law clerk hires included Asian, Hispanic, and Arab attorneys, members of religious minorities, more than 50 women, and over 100 African American attorneys.

Judge Keith would beam with pride every Fourth of July when he would celebrate his birthday at his family farm in Virginia. All of his former law clerks and their families were invited. He closely followed their successes and was proud of their accomplishments. One of his favorite sayings was “My law clerks are going to make me famous.” That was an exaggeration, of course.

But it is a fact that the Keith clerk family is full of extraordinary leaders in the legal profession. They include state and federal judges, such as Sixth Circuit Judge Eric L. Clay and District Judge Wilhelmina “Mimi” Wright. They contain a number of law professors at George Washington, Howard, Duke, and other schools. Among the family members in academia was the late Lani Guinier, civil rights theorist and the first woman of color to obtain tenure at Harvard Law School.

Other branches of the Keith clerk family include business executives such as Toyota Motor North America’s Christopher Reynolds; public interest and civil rights leaders such as Constance L. “Connie” Rice (founder of the Advancement Project) and Justin Hansford (executive director of the Thurgood Marshall Civil Rights Center); government leaders such as current U.S. Secretary of Energy Jennifer Granholm, Ambassador Rashad Hussain, and Michigan Secretary of State Jocelyn Benson; and a number of leaders in the private bar.

Through his example, Judge Keith showed the judiciary and the legal profession that African American and other diverse lawyers are available, in significant numbers, and that they represent an extraordinarily rich talent pool. That is a legacy that needs to be more widely celebrated. That legacy may be as significant as the long line of important judicial decisions that Judge Keith left us with. These days, the talent pool of diverse lawyers is richer and significantly larger than was the case when Judge Keith began his judicial career more than 50 years ago. Isn’t it time for others in the legal field to follow his blueprint?

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Mitra Jafary-Hariri

Attorney

Mitra Jafary-Hariri is an attorney in Detroit, and a former law clerk for Judge Keith.

Alex L. Parish

Partner

Alex L. Parish is a partner with Honigman LLP, Detroit, and a former law clerk for Judge Keith.