Common Ground (47 page)

To this day, Garrity insists that he had no ulterior motives in these labors, but if he didn’t, Dick Maguire surely did on his behalf. Maguire, who had become a political adviser in the White House, immediately proposed his law partner as the new United States Attorney for Massachusetts. It was a much-sought position; dozens of lawyers who had labored for the Kennedys felt they deserved it. Arthur Garrity was the leading candidate from the start, however, and on March 24, 1961, his name went to the Senate.

But the Administration seemed content to let the Republican incumbent, Elliot Richardson, remain in office a while longer. High on the U.S. Attorney’s docket was the tax evasion trial of Boston industrialist Bernard Goldfine. Goldfine’s lawyer was Edward Bennett Williams, a Holy Cross classmate and close friend of Garrity’s. It might be better, the Kennedys thought, to let Richardson handle the Goldfine case.

The trouble was, Richardson had another investigation underway which promised to be more embarrassing. Since World War II, nearly a billion dollars in federal money had financed new expressways in Massachusetts, creating ample opportunity for graft. Just how ample became evident in proceedings Richardson launched against Thomas Worcester, an engineer who had obtained highway contracts through kickbacks to state officials. After Worcester was sentenced to eighteen months in prison for tax evasion, Judge Charles E. Wyzanski offered to suspend the sentence if he testified about the kickbacks. This Worcester did, conceding that he had paid $275,000 to state legislators, a congressman, even William F. Callahan, the influential Chairman of the Massachusetts Turnpike Commission, a power broker with ties to virtually every important Democrat—and many Republicans—in the state. It was a scandal with lush possibilities.

Charles Wyzanski was the most brilliant judge on Boston’s Federal District Court. A protégé of Felix Frankfurter’s at Harvard, a member of Franklin Roosevelt’s “brain trust” at twenty-six, and frequently mentioned as a candidate for the Supreme Court, Wyzanski was also unpredictable, impetuous, and abrasive. “By temperament,” he once said, “I believe with Heraclitus that strife is the source of all things. I have the joy of battle.” On January 5, 1961, he lived up to his militant reputation with a peroration from the bench which
found that “a network of corruption” permeated the state, and scolded law enforcement officials, politicians, the press, and the bar for tolerating “this venal system.” It was a polemic which not even a President-elect could ignore. As he gained in national stature, John Kennedy had held himself aloof from the morass of Massachusetts politics, but with his inauguration barely two weeks off, he had to heed such a sweeping indictment of his own state’s political morality. Four days after Wyzanski’s tirade, Kennedy came home to address a joint session of the Massachusetts legislature. Invoking John Winthrop’s memorable phrase, he declared, “Our governments, in every branch, at every level, national, state and local, must be as a ‘city upon a hill,’ constructed and inhabited by men aware of their grave trust and their grave responsibilities.”

Thus pledged to clean house in Boston as well as in Washington, Jack Kennedy and his brother, the new Attorney General, wanted to avoid anything which might look like obstruction of Elliot Richardson’s investigation. So, well into April, Richardson presented evidence to a federal grand jury. Then, on April 12, he sent a draft indictment of six persons to the Justice Department for comment. The next day, Garrity’s appointment was rushed through the Senate Judiciary Committee, past an unsuspecting Senate, and sped to the White House for the President’s signature. The following morning, the commission was put on a plane for Boston, where Joe Maloney, one of Garrity’s law partners, retrieved it at Logan Airport. At four that afternoon, Arthur Garrity was sworn in as the new U.S. Attorney.

It was not an auspicious start. Elliot Richardson felt badly used by Bobby Kennedy and, although the Attorney General named him a special assistant to carry on the Goldfine prosecution, Richardson soon was charging “cover-up.” The implication was that the Kennedys had shut down the highways investigation before it reached prominent Massachusetts Democrats.

Judge Wyzanski was even more outraged by the turn of events. An intellectual Russian Jew, Wyzanski had clearly enjoyed his collaboration with the elegant Yankee prosecutor in cleaning the Augean stables of Irish politics. He plainly regarded Arthur Garrity as a Kennedy stooge, placed in office to frustrate his own reforming zeal, and he wasn’t afraid to say so. When one of Garrity’s assistants brought an Army private into court charged with unauthorized duck hunting, Wyzanski wanted to know whether the U.S. Attorney thought justice was best advanced by prosecuting “matters of this sort” as opposed to the highway prosecutions on which Garrity had “failed to follow through.”

As such sniping persisted, the Wyzanski-Garrity feud was the talk of the Federal Courthouse. To some, the dispute took on larger proportions: a clash between Yankee/Jewish rectitude and Irish/Kennedy pragmatism. Certainly Arthur Garrity was a Kennedy loyalist, but he was no stooge. For a time he did seem to be dragging his feet on the highway frauds. But, ultimately, he brought nearly twenty indictments, including five of the six recommended by Richardson, and about half of the defendants were convicted. Eventually, even
the most skeptical Yankees conceded that the delay was due not to some Kennedy-inspired cover-up, but to Garrity’s characteristically meticulous work habits.

Indeed, by the end of his five-year stint as U.S. Attorney, Arthur Garrity was so widely respected in Boston’s legal establishment that he moved rapidly into the leadership of the very Yankee Boston Bar Association (as distinguished from the Irish-dominated Massachusetts Bar Association). In 1966, he served as the association’s vice-president and would have become its president—only the third Irish Catholic ever to hold that post—had he not been made a federal judge.

Ever since the new seat on Boston’s Federal District Court was created by Congress in May 1961, Jack Kennedy had been under heavy pressure from his father to appoint an old crony, Boston Municipal Court Judge Francis Xavier Morrissey. A ruddy-faced operator who knew his way around the seamy side of Boston politics, Morrissey had served as Joe Kennedy’s agent in his son’s camp. But when the American Bar Association found him “lacking in intellectual capacity,” Kennedy temporized, and at his death the seat remained empty. Morrissey kept pressing for the job, supported by Ted Kennedy, and two years later Lyndon Johnson obliged, shrewdly mousetrapping his Massachusetts rivals. When the Boston
Globe
revealed that the judge had falsified his credentials, the legal establishment—led, not surprisingly, by Charlie Wyzanski—excoriated the appointment. The Kennedys, not Johnson, had to shoulder the blame and in October 1965 Ted threw in the towel.

Publicly humiliated, the Kennedys badly needed a candidate whose credentials couldn’t be challenged, so Ted turned to another man who had served the family well. A judge, the old saying goes, is just a lawyer who knew a governor. Arthur Garrity had known a President, an Attorney General, and a senator—and he was amply qualified. His nomination encountered no significant opposition, and on July 6, 1966, Garrity was sworn in by the presiding judge of Boston’s District Court—none other than Charles Wyzanski—who made some coolly polite remarks about his new colleague.

As a judge, Garrity proved the very antithesis of his old antagonist. Where Wyzanski was flamboyant, Garrity was the soul of propriety; where Wyzanski was bold, Garrity was cautious; where Wyzanski was self-aggrandizing, Garrity was self-effacing. His bald head bowed over the bench, squinting down through horn-rimmed glasses, he was unfailingly polite to lawyers (“Permit me, if you will,” “If you’ll pardon me for saying so”) and careful to tell criminal defendants what he was doing (“Now, the law requires me to …”). If anything, he was conscientious to a fault—the smallest procedural matters had to be submitted in writing. Unlike other judges, who delegated heavily to young law clerks, Garrity read everything that crossed his desk, often working twelve hours a day, and such diligence meant that years might go by before he decided a complex case. Inmates at Boston’s antiquated Charles Street Jail filed suit in January 1971 to have the prison closed or its conditions improved. Not until June 1972—after spending a night in jail to make his own assessment—did
Garrity open the trial. His decision did not come down until a year later. In a Worcester police brutality case, Garrity took twenty-one months to rule. But his caution paid off: among New England’s federal judges, he had one of the lowest rates of reversal by the First Circuit Court of Appeals.

In at least one area, however, passion overrode judicial reserve. On criminal matters, especially those involving moral transgressions, Garrity was the harshest sentencer in the district. In bank robbery cases, one lawyer recalls, “you could send your client Christmas cards in prison for years if Arthur was the judge.” Drugs, in particular, aroused him. In thirty drug cases which came before him between 1971 and 1973, Garrity sent twenty-nine of the defendants to prison, for an average of 4.2 years. “It is essential to take these harsh steps to endeavor to bring the country out of this scourge,” he said in sentencing one young man to three years in prison for a “relatively innocent” cocaine offense (thereby drawing a rare, if indirect, rebuke from the Court of Appeals). Pornography, too, horrified him. After ruling on some sexually explicit magazines, Garrity told an attorney for the defendant, “It is because of lawyers like you who take these cases that people are able to import this trash.” Garrity often struck a high moral tone. Sentencing a convicted murderer, he explained, “There is an aura of evil about this case.”

“Garrity is a puritan,” said one criminal lawyer who has practiced before him. “Like all puritans, he has a great superego, great control. That’s the side he shows most of the time—contained, dispassionate, methodical. But, take my word, underneath is a boiling cauldron of prejudices, biases, notions of how people ought to behave. Like all puritans, he has a pathological fear of losing control. Drugs and pornography represent loss of control, and that’s why they have to be punished so severely.”

Such reservations notwithstanding, by March 1972, when his name was drawn from the little brown envelope, Garrity struck many Bostonians as the ideal arbiter for the long-standing battle of majority rule vs. minority rights in the city’s schools. For not only did he have a reputation for integrity, fair-mindedness, scrupulous attention to detail, and hard work, but he was an Irishman—a Kennedy Irishman at that. The day Garrity got the case, his old adversary, Charlie Wyzanski, told a friend at lunch, “Boy, I’m glad I didn’t get it. You need an Irish name, a Catholic, to do it.” If anybody could sort out the decade-old muddle, it seemed to be Arthur Garrity.

Garrity wasn’t so sure. He knew how tangled school desegregation law had become in the eighteen years since the Supreme Court, in
Brown
v.
Board of Education
, had held that separate school facilities for black and white children were “inherently unequal” and therefore violated the Fourteenth Amendment’s equal protection clause. And he knew the complexities involved in applying the evolving doctrine to Northern cities like Boston.

Ironically, Boston was the only city to which the Court in
Brown
had given a clean bill of health. To gain maximum support for that landmark decision, Chief Justice Earl Warren had not wanted to point an accusing finger solely at
the South; after all,
Brown
itself was a Kansas case and, as Warren wrote in a footnote: “In the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.” To underline that point, Warren noted that the separate-but-equal doctrine itself had originated with
Roberts
v.
City of Boston
(1850). But, referring to the Massachusetts legislature’s subsequent action in abolishing legally mandated school segregation, Warren added, “Segregation in Boston public schools was eliminated in 1855.”

That remark would have surprised the black plaintiffs in
Morgan
v.
Hennigan
and the white liberals who had drafted the Racial Imbalance Act eight years earlier. To be sure, Warren had been writing still earlier, before the wave of black emigration from the South had intensified the imbalance in Boston’s ghetto schools. But in any case, the Chief Justice felt bound by the. Court’s long-established position that the equal protection clause only prohibited discrimination by the state, not by private practices. Thus
Brown
applied only to separation imposed by racially explicit statutes, what became known as
de jure
segregation, not that which stemmed from social conditions, or
de facto
segregation. As the law stood in 1954, Boston’s schools were plainly not segregated.

In 1955, in a decision that came to be known as
Brown II
, the Court ordered desegregation to proceed with “all deliberate speed,” but left specific remedies in the hands of district judges who were closer to local conditions and thus better able, the Court said, to balance “public and private needs.” But for the next decade little progress was made. For a time, indeed, Southern judges found in the
de facto—de jure
distinction a loophole through which to slip continued segregation. It was put most starkly by Judge John J. Parker of the Fourth Circuit Court of Appeals, a Virginian whose appointment to the Supreme Court in 1930 had been torpedoed by the NAACP when it turned up a speech of his filled with racial slights. In 1955, Parker wrote: “[The Supreme Court] has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any schools that it maintains … but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches.”