by Harry H. Stein. Portland: Oregon Historical Society Press, 2006. 282pp. Paper. $22.00. ISBN: 9780875952987.
Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile [at] mtsu.edu.
With the exception of those who have written either individually or collectively about individuals who were at the center of civil rights cases in the 1950s and 1960s or about mavericks, most legal biographers have focused on lawyers known for courtroom theatrics or on US Supreme Court Justices. In what may well be a more representative portrait of federal judges, Harry Stein’s biography of Gus Solomon focuses on a lawyer who distinguished himself as an attorney and activist before serving as a judge on the US District Court for Oregon. Stein, an historian who has specialized in the history of the area, draws from a wide variety of oral histories, personal interviews, government documents and records, manuscript collections, and court decisions. He ably supplements these with secondary historical materials and relevant literature on judicial processes that place Solomon in the context of his time, place, and ethnic background. Stein amply documents his book and includes a bibliography, which, curiously, does not include citations to court decisions, and whose titles are similarly missing from the index.
Gus [Gould] J. Solomon (1906-1987) was born in Portland, Oregon to Jacob and Rose Solomon, immigrant parents from Romania and the Ukraine who had married in the United States. Jacob was a moderately successful businessman. Gus attended the University of Washington before completing his undergraduate degree at the age of 19 at Reed College. He then enrolled in Columbia University Law School where legal realism was in fashion but subsequently completed his degree at Stanford.
Following graduation, Solomon returned to Portland, where he found that his ethnic identity made entry into, and advancement within, the legal profession more difficult than it otherwise would have been. He compensated by entering private practice in 1929, but, as Stein notes, did not therefore depart from the norm, as 60 percent of his contemporary lawyers were in similar circumstances (p.25). Solomon subsequently affiliated [*585] with Leo Levenson and Irvin Goodman, without forming a formal partnership, and later set out completely on his own shortly after marrying Elisabeth (Libby) Willer, a medical technologist and fellow political activist, in 1939.
Influenced by both the sense of justice that he imbibed as part of his Jewish heritage and by his exposure to legal realism, Solomon “was no morally neutral legal technician but, rather, a fervent agent of change” (p.32). He became an advocate for publicly-owned utilities and labor unions, joined the American Civil Liberties Union and other rights organizations, and affiliated with numerous Jewish organizations. Most of his casework involved relatively routine business matters, often involving family friends and acquaintances, but at the age of 30, he helped launch the appeal that resulted in the US Supreme Court decision in DEJONGE v. OREGON (1937), which helped incorporate freedom of assembly in the Fourteenth Amendment.
Stein classifies Solomon as “a centrist liberal” (p.45). Although some organizations to which Solomon belonged sometimes made common cause with communists, he “considered Communism to be an anti-democratic force” (p.47), increasingly distanced himself from communists, and tried to undermine their influence. He supported mainline New Deal programs. As a committed Zionist and member of the American Jewish Congress and other Jewish organizations, Stein identifies Solomon with “personal identity politics” (p.64); he was a member of a local Jewish congregation but does not appear to have been particularly religious.
Although he tackled many liberal issues, Solomon regretted that he did not oppose the internment of Japanese Americans during World War II. The war’s end brought increased business, prosperity, and success; he won nine of the last 10 cases he argued before Oregon’s high court (p.85). Although Truman did not get the state’s electoral votes, Solomon, who was increasingly active in Americans for Democratic Action, helped Truman gain the support of Oregon’s Democrats over Henry Wallace.
In one of the few places in the book where Stein’s transition to a new phase in Solomon’s life is inadequate, Stein observes that by 1949, Solomon was pursuing a federal judgeship. Stein does not indicate what spurred Solomon’s interest in the job or whether the interest was relatively new or long-standing, but Solomon won the support of Oregon’s Democratic National Committeeman, Monroe M. Sweetland, and US Senator Wayne Morse and survived a fairly bruising confirmation battle that lasted from the beginning of 1949 until June 1950. Recognizing Solomon’s commitment to liberal Democratic principles, the only assurance that President Truman wanted (and that Solomon gave) was that he was not, nor had ever been, a communist. Opponents included business leaders, especially in the electric power industry, conservative Republicans, and the almost equally conservative American Bar Association, who tried to use innuendos dredged up by the FBI; there was probably sub rosa concern over his Jewish identity. Truman eased Solomon into his job with the use of an interim appointment.
Solomon believed that his appointment required him to act as disinterestedly as possible and emphasized the difference between “political choices” and “judicial choices” (p.120). Off the Court, he continued to be a liberal Democrat, but on the court he sometimes leaned over backwards to avoid the appearance of favoritism, especially to fellow Jews or to those whose causes he had once trumpeted. Solomon was often willing to defer to congressional statutes, observing that “I do not believe that the [*586] courts should be used to thwart the will of Congress, absent some constitutional basis” (quoted on p.124). Although Stein does not say so, Solomon’s philosophy on this point seems similar to that of Justice Felix Frankfurter.
Solomon was a tireless worker who, in 1958, became the district’s chief judge. He worked assiduously to streamline pleadings and so effectively disposed of work that he often served as an extra judge on the Ninth Circuit, where he authored 111 opinions (p.139) but to which his appointment was later blocked. Less positively, he developed a reputation for being fairly hard on lawyers, whom he often castigated in his court in a condescending fashion. Stein refers to his “idiosyncratic judicial autocracy” (p.149).
Solomon combined judicial restraint with the search for justice; Ernest Bonyhadi noted that “To effect justice a la Judge Solomon did not mean seeking near-utopian justice, ultimately, but justice now – pragmatic justice, putting a dispute to rest” (quoted on p.156). Higher courts overwhelmingly approved his decisions on appeal, and both the Ninth Circuit and the US Supreme Court praised his work. Following up on earlier observations throughout his book, however, Stein notes that Solomon’s greatest weakness was his lack of a “judicial temperament” (p.164). Stein cites both Solomon’s short temper and the treatment that he often doled out to lawyers in his courtroom. Although Stein paints a picture of a relatively strong marriage and of early joy over his three sons, he does not indicate whether Solomon’s autocratic style in the court room might have affected his home life, to which Stein directs relatively little attention.
A strong proponent of civil rights who furthered joint efforts between Jews and African-Americans, like other liberals of his era, Solomon emphasized “equal opportunities” over “equal results” (p.175) and opposed racial quotas. He was concerned about much of the social disruption of the 1960s. He strongly supported the draft but was relatively indulgent to conscientious objectors who were motivated by religious convictions and who were willing to accept punishment for their convictions (for a time, he worked out a plan that enabled Jehovah’s Witnesses to accept alternative service).
Solomon was a strong defender of the First Amendment, but he disagreed with the ACLU’s support of Nazi demonstrators in Skokie. Solomon consistently construed treaties to protect Native American rights. He avoided death penalty cases, at least twice, according to Stein, pleading “nonexistent calendar conflicts” to escape reviews of such penalties while helping the Ninth Circuit (p.212). Although he held confessions to high standards, US Attorney Sidney Lezak observed that “Solomon, the liberal judge, refused to suppress evidence as a version of a Supreme Court decision that would elevate the rights of criminals to an extremely high degree” (p.215). The US Supreme Court upheld his decisions relative to the confrontation clause in NELSON v. O’NEIL (1971), jury instructions in NAUGHTEN v. CUPP [*587] (1973), and search and seizure in CUPP v. MURPHY (1973).
Solomon worked diligently to integrate Jews both into Portland law firms and into the city’s private clubs. In time he not only refused to speak at such venues but encouraged others to boycott as well.
The victim of an early heart attack and beset with a variety of other ailments, Solomon took senior status in 1971, but continued to maintain an office in chambers and to serve actively on both district and circuit courts. Cancer finally felled him in 1987 at the age of eighty. Two years later the federal courthouse in Portland was named in his honor.
Stein’s account not only provides a convenient lens through which to examine justice in Oregon but the role of lawyers and judges (especially Jews) through several critical decades of American history.
CUPP v. MURPHY, 412 U.S. 291 (1973).
DEJONGE v. OREGON, 299 U.S. 353 (1937).
NAUGHTEN v. CUPP , 414 US 141 (1973).
NELSON v. O’NEIL, 402 U.S. 622 (1971).
© Copyright 2007 by the author, John R. Vile.