- Good afternoon.
My name is Margaret Raymond
and I'm the dean of the
law school here at the
University of Wisconsin.
It is my great pleasure to welcome you
to the 27th Fairchild Lecture.
This lecture commemorates Judge Fairchild.
Ordinarily, I would take
some time and tell you
something about the
judge, but today I think
our speaker's going to take care of that.
So I'm going to leave it to the talk
to educate you further about
Judge Fairchild's legacy.
But I do want to welcome all of the judges
and law clerks who are
joining us here today.
Actually, if all of them
would either stand up
or wave or let us know you're here.
Thank you.
Thank you so much for being here.
And we at the law school
very much appreciate
the former clerks of Judge Fairchild
who join us for this
event and who support it.
Thank you so much.
It is my pleasure to
welcome one of that number,
who is our speaker this year, Nils Olsen.
Do they call you professor
or dean or all of the above?
- All of the above.
- Okay.
- Mostly Nils.
(laughter)
- Nils and I have many points of contact.
First he is a graduate of this university
for his undergraduate degree.
He did his law degree
at Columbia University,
from which I also hold my JD.
And third, he did time,
oh, that's probably not the way to say it.
He spent time as a law school dean
at the State University of New York
at Buffalo Law School,
where he excelled first
as a clinical teacher
and then as a dean,
which role he played from
1998 until 2007.
I understand that he will retire in May
and wish him many wonderful opportunities
on the next steps in his journey,
which I am delighted to say will bring him
back to Wisconsin.
So we will look forward to having him here
as a friend and colleague,
at least somewhere in the state.
But his very next step in his journey
is to present his talk to us today.
Please join me in welcoming Nils Olsen.
(applause)
- Thank you, Dean Raymond.
Ordinarily, I wouldn't be
bound to the podium like this.
I like to wander around.
But I'm afraid this is
lengthy enough that if
I don't follow my text,
I'll be in trouble.
I'm somewhat technologically limited,
so hopefully the technology will work.
I've spent a lot of time in the archives
and on the internet.
I have, I think, hopefully a
well illustrated talk as well.
Rarely in life can you say that your
first experience was your best.
For me, although my
clerkship with Tom Fairchild
was my first legal experience
in an otherwise privileged legal career,
I can also say that it was
my very best experience.
And so in honor of that experience
and the man who made it possible,
I thought it appropriate
to focus my remarks
in this lecture on the
life of Judge Fairchild.
Recognizing that the
unique family tradition
of judicial and political engagement
of the Fairchilds of Wisconsin,
which I think is probably exceeded
only by that of Leibowitz, perhaps,
made it appropriate to consider both
Edward and Thomas Fairchild,
as obviously much of
Tom Fairchild's career
grew out of his father's first career
and his father in his own right
was quite a remarkable man.
So our story begins in the,
yeah, if you turn the lights down,
in the hard scrabble western Pennsylvania
town of Towanda on June 17, 1872
with the birth of Edward T. Fairchild.
At the age of five, Edward
moved with his family
to the lovely western New
York village of Dansville,
which is within about
40 miles of Rochester.
So not that far from
where my family lives.
Edward was one of eight
members of the first class
to graduate from the
Dansville High School.
Believe it or not, I
found these are postcards
that I found on eBay.
(laughter)
In 1890, he graduated.
He had no further formal education.
He worked first as a part time teacher,
a bookkeeper in a hardware store,
and a newspaperman.
Edward then clerked in the law office of
Broyet, Roe, and Coin and passed
the New York State Bar and was admitted
to practice in Buffalo in 1894.
That's Edward at around that time.
He practiced law in
Dansville for three years,
then moved to the bright lights
and big city of Milwaukee.
His first office was in a vacant room
in the old sentinel building,
which was formerly the law offices
of Cleist, Bennett, and Churchill.
Bennett plays an important
role in his life.
He was a prominent citizen who was elected
to the Milwaukee County
District Attorney in 1900.
Edward was influenced in his decision to
relocate to Wisconsin by the fact that his
mother's brother, Dr.
Amos Kiel, was the pastor
of Milwaukee's Calvary
Presbyterian Church.
My wife said I was showing
too many buildings.
(laughter)
He roomed with his uncle until acquiring
his first major client,
the inelegantly named
Milwaukee Tallow and Grease Company.
(laughter)
He then moved in with Captain Merriman,
a retired Great Lakes ships captain
who ran a boarding house.
And significantly, one
of his fellow boarders
was a Mike Laffey, who
was active in politics
and who served in the
Wisconsin State Assembly
as a Republican.
In 1900, the fourth ward
of Milwaukee was electing
a delegate to the Milwaukee
County Republican Convention.
Mike Laffey encouraged Edward to serve.
He ended up seconding Bennett's nomination
for district attorney.
In 1900, Edward was
rewarded for his support
and was appointed second
assistant district
attorney by Bennett.
This position provided sufficient economic
security to permit Edward to return to
Dansville and marry his
high school sweetheart,
Helen Mcurdy Edwards.
The local paper described
the nuptials as one of
the prettiest weddings
that was ever celebrated
in the village, with
the Presbyterian church
filled with 500 invited guests.
So you can see why he needed a good job.
(laughter)
There's the Presbyterian
church in Dansville.
The couple had five
children, three of whom,
James, Helen, and
Elizabeth, died in infancy.
And Edward Fairchild
Carter, who became a missile
design engineer for the Navy,
was their first child
and Tom was their fourth.
Edward served in the
DA's office until 1906,
when he left to join Frank
Lenichek and Frank Boesel,
who was also an adjunct faculty member
of the University of Wisconsin Law School.
Boesel was a lifelong friend and best man
at Edward's wedding.
That's how law professors used to look.
(laughter)
Together they formed the law firm of
Lenichek, Fairchild, and Boesel.
Edward's political career began in 1904
when he unsuccessfully ran for the
Republican nomination
for district attorney.
In 1906, he was elected
to the state senate
and served two sessions.
While a state senator,
he developed what was
to become a lifelong interest
in vocational training.
He chaired a committee
that studied the need
for vocational education
and resulted in a law
establishing continuation
schools under the
state ward of vocational education.
Edward also played an
instrumental role in the
sponsorship and drafting of Wisconsin's
workman's compensation
law, first in the nation.
In politics, Edward was a conservative,
stalwart Republican.
He had close personal
friendships with Charles Pfister,
the Republican leader at the time,
and with wealthy
businessmen Emanuel Philipp
and Walter Kohler, both
later elected governor.
As his legislative record
makes clear, however,
he was firmly committed to government
providing support to those
challenged by personal hardship.
Indeed, Edward helped
people throughout his life.
He was active in organizing Milwaukee's
community welfare organization
and the Milwaukee Urban League.
In 1909, friends organized a committee
to encourage Edward to run for mayor.
News accounts in the Milwaukee Free Press
quote his supporters.
Edward Schwarm, an electrical
engineer, explained,
"Mr. Fairchild is popular
with the laboring men.
"Fairchild is fair and honest.
"He is intelligent and
can make a good speech.
"He isn't stuck up.
"He has many warm friends
in all parts of the city."
These efforts, however,
never came to fruition.
The stalwarts, who by
this time were engaged
in annual conflict with
Robert La Follette Senior's
progressive Republicans, were in need of a
gubernatorial candidate
for the Republican primary.
Edward ran.
You notice this one is in German.
Edward ran but was defeated
by Francis McGovern.
Edward was a representative
of the William Howard Taft
wing of the National Republican Party,
while McGovern was a La Follette
and Teddy Roosevelt progressive.
Edward was elected to the state
senate once again in 1914.
Missing his law practice,
he resolved to re-enter
private life, however,
stalwart Republican governor
Emanuel Philipp, his
friend, whom he served as
floor leader, asked him
to delay his departure.
And in September of 1916, Governor Philipp
appointed Edward to the circuit
court of Milwaukee County.
He was elected to retain
his position in 1917
and twice thereafter.
On April 30, 1930, Edward was appointed by
Governor Kohler to a position on the
Wisconsin Supreme Court.
He became chief justice
on January 4, 1954.
I got behind.
It has been estimated
conservatively that during
his career, Edward
participated in more than 8,000
appeals and authored more
than 1,000 majority opinions.
Edward was the last
justice on the Wisconsin
Supreme Court who attended
neither college nor law school.
Mr. Justice Steinle of the court
at a testimonial dinner honoring Edward
on the occasion of his retirement
described his opinions.
Many indeed rank as literary gems.
They reflect his keen power
of analysis and discrimination
and above all his tremendous knowledge
and appreciation of
sound legal principles.
Reading his opinions, and
I think I read them all,
is indeed a humbling experience
for a legal academic,
as he clearly did not suffer from his
lack of a university, much
less a professional education.
Edward stood for retention in 1936
and again in 1946.
And these are quite interesting elections.
He confronted an opponent, Juan Turner,
who undoubtedly responding to the five old
men of the US Supreme
Court and their votes
invalidating much of the
early New Deal legislation,
pledged he would never vote to
hold a law unconstitutional.
Young Tom, a law student,
debated the issue
with a daughter of his father's opponent
before the University of
Wisconsin Progressive Club.
Alarmed at the potential for
a Depression era backlash
against traditional
Supreme Court jurisdiction,
a bipartisan attorneys
committee was organized
in support of Edward and he
won by a significant majority.
In his second retention
election, Edward's opponent,
Henry P. Hughes, a
circuit judge in Oshkosh,
made Edward's age the issue.
In a letter requesting
attorneys to circulate
his petitions, Hughes stated,
"In 1935, the average age of the court was
"56 years of age.
"Today the average age is 68 years.
"Three of the present members
are over 73 years of age.
"I am 41 years old."
I think that was his
primary qualification.
(laughter)
In a radio speech
supporting his retention,
Edward stated, "I am 73 years of age.
"Old enough to have six grandchildren
"and to have had 30 years
of Supreme Court experience.
"But nevertheless young
compared to such a man
"as Justice Holmes,
who continued an active
"and illustrious judicial
career until the age of 93."
Tom at the time in private
practice in Portage
sought the counsel of former
governor Philip Fox La Follette
and was advised to work
the progressive side
of the street and contact as many party
supporters as possible.
He believed that his
efforts in this regard
might well have been determinative in what
was an extremely close election.
Madison attorney Joseph
A. Ranney has discussed
the pivotal role that Edward played on the
Wisconsin Supreme Court in
several excellent articles.
His career began at a difficult time
in the depths of the Depression,
one that Wisconsin legislature
enacted reform laws
that situated state government in areas
it had never occupied in the past.
This presented enormous
challenges for the court.
Unlike the early New
Deal US Supreme Court,
the Wisconsin justices
under the leadership
of Chief Justice Marvin Rosenberry
were by and large moderate and supportive
of these legislative initiatives.
Edward's stalwart beliefs can be discerned
in his dissenting opinion in the 1931 case
of Corstvet versus Bank of Deerfield
in which in Ranney's words,
"Edward began his emergence as a leader
"of the court's conservative wing."
Corstvet concerned the constitutionality
of a Wisconsin law that allowed banks to
defer depositor's demands for immediate
withdrawal of their
funds and to make gradual
repayments over time.
Sounds like it's a wonderful life.
Edward expressed a
conservative perspective,
concluding that impairment of individual
depositor's rights to immediate access
to their funds overcame the interests
of society at large to
the solvency of its banks.
Unlike some of the current
politically conservative
judges, however, Edward
was pragmatic, collegial,
and deeply respectful of the
doctrine of stare decisis.
As stated by Ranney, Edward
Fairchild lived in an
era of dramatic social and economic change
and played a significant
part in shaping that change.
Edward retired from the
Wisconsin Supreme Court
on January 7, 1957 at 86 years of age.
Immediately prior to his retirement,
he swore on his Tom Fairchild
as a justice on the court.
He died on October 29,
1965 at the age of 93.
The ultimate distillation
of Edward's career
was authored by Mr. Justice McCann
in his memorial on behalf of the court.
Mr. Justice Fairchild's
career can be summed up
as that of a typical farm boy with only a
high school education, working his way up,
passing the bar examination,
entering politics,
and crowning his career
with 40 years on the bench,
the last portion of which he served as
chief justice of this court.
Per aspera ad astra, which I'm told means
through hardship to the stars.
We'll next turn our attention to the life
and times of Thomas E. Fairchild.
Thomas, born on Christmas
Day, 1912, in Milwaukee.
The first writing that
we have from young Tom
is addressed to his father, Edward.
(laughter)
He attended the Grand Island Grade School.
I'm sorry, the Grand Avenue Grade School.
The family then moved to
the east side of Milwaukee,
where Tom enrolled in
Riverside High School
from which he graduated in 1928 at age 16.
He played the french horn in the orchestra
and performed on a national
radio broadcast in 1928,
reported proudly in the Dansville papers.
Tom's parents were 40
years older than him.
However, there was always a
close, if somewhat formal,
relationship between them.
Tom recalled finally
the many Sunday walks he
took with his father
around their neighborhood,
street car rides during
which Edward would discuss
the various neighborhoods
they passed through,
trips to Milwaukee County Zoo,
and automobile adventures he would take,
sometimes all the way
to Rockford and back,
with Edward and a close friend,
the judge on the Milwaukee
County criminal court
who owned a car.
He also took several
train trips to Madison
with his father while he
served in the state senate
as well as a memorable
journey to Washington, DC
where he had the opportunity
to meet President Carter.
Upon graduation from
high school, Tom took an
unusual direction in his higher education.
Enrolling as a student
in Deep Springs College,
which was situated in
the high desert terrain,
Inyo County, California
near the Nevada border
and close to Death Valley.
That arrow, could you turn
the lights down just a little?
That arrow can show you
the, still a little bright.
That arrow can show you the little bit of
green is the college that he attended.
The college was all male and had a total
student body of 20 students.
Deep Springs charged no tuition or fees.
It employed a radical governance system
in which the student body considered
beneficial honors of the institution
elected one of the college trustees
was instrumental in the hiring of faculty
and determination of the curriculum
and performed all the tasks associated
with the operation of the college,
including milking the
cows, collecting eggs,
and slaughtering the chickens,
preparing agricultural implements,
cooking, dish washing, painting,
and serving as office personnel,
carpenters, and laundrymen.
L.L. Nunn, who made his
fortune in Telluride, Colorado
developing a system for the long distance
transmission of alternating current,
founded Deep Springs.
Nunn had a life long eclectic
interest in education.
In 1911, Nunn sold his
commercial interests
and used the proceeds to fund
the Telluride Association.
Through the association,
he constructed a large
house at Cornell University,
which became known
as the Telluride House.
Offering room and board
scholarships to former
workers of his power business
in Colorado and Utah.
In 1917, Nunn took an
auto trip to Death Valley.
He was immediately
struck by the isolation,
solitude, and stark beauty of the site.
He purchased a ranch
in Deep Springs Valley.
It was here that he
constructed his university.
Nunn expressed his vision
to students shortly
before his death in 1925.
"Gentlemen, for what
came ye to the desert?
"Not for conventional scholastic training,
"not for ranch life,
"not to become proficient in commercial
"or professional pursuits
for personal gain.
"You came to prepare
for a life of service,
"with the understanding
that superior ability
"and generous purpose
would be expected of you."
And considering Tom
Fairchild's public life,
the effects of this vision with its strong
emphasis on a life informed by the ethic
of public engagement are clear.
His years in the desert
were indeed formative
and in Nunn's words, he heard
the voice of the desert.
In 1931, Tom left Deep Springs after two
productive years to matriculate
at Princeton University,
which was probably quite a change.
Prior to his acceptance at Deep Springs,
he had gained admission at Princeton,
which would only hold that
status open for two years.
Not surprisingly, the Ivy
League tradition bound
Princeton gave no credit for his two year
studies at the radical
setting Deep Springs.
So he began anew as an
18 year old freshman.
At the end of his sophomore year,
the academic gypsy made yet one more move,
transferring this time
to Cornell University.
This move was made once again to benefit
from Mr. Nunn's largess.
The Telluride Association
at Cornell provided
selected students,
including those transferring
from Deep Springs, the privilege of living
in its beautiful residence expense free.
As a result, Cornell was
familiar with Deep Springs
and gave full reciprocity
to credits earned there.
During the Depression, finances were tight
in the Fairchild household,
and these advantages
proved irresistible.
Tom lived in Telluride House and graduated
one year early in 1934.
After graduation, Tom enrolled in the
University of Wisconsin Law School.
Because of Edward's position as a justice
on the Wisconsin Supreme Court,
the Fairchilds believed the law school
might present unique
opportunities to young Tom.
He could also save
significant funds living
at home and paying the
then in state tuition
of $37.50 a semester.
(laughter)
Tom's favorite faculty at the law school
included the kings of field
like William Herbert Page,
Nate Weinsinger, Dick
Campbell, Oliver Rundell,
and his father's old friend, Frank Boesel.
During his third year of law school,
Tom served as law secretary to his father.
A part time position that paid the then
princely sum of $150 a month
and carried a commitment
to extend the position
full time through the first
year after graduation.
While at law school,
Tom often studied in the
Phi Delta Phi library
located on the top floor
of the old YMCA building.
Walking through the building,
he observed a striking
young woman working there
who caught his fancy.
After a traditional and extremely
appropriate courtship, Tom's words.
(laughter)
He proposed to Eleanor Dahl.
In 1937, after both graduated from the UW,
the young couple were
married in Lowell, Indiana,
where Eleanor had been
raised on a nearby farm.
It looked more like that.
Notwithstanding his one year post graduate
commitment to his father,
both Tom and Edward
were concerned about
employee opportunities
during the prolonged economic downturn.
As a result, Edward
encouraged Tom to begin
his employment search immediately.
Dan Grady was a prominent
attorney who had served
as a president of the UW Board of Regents.
A colleague on the court who knew Grady
put in a good word.
When Tom received an
offer from the Portage
law firm of Grady, Farnsworth,
and Walker in 1938,
Edward agreed to release
him from the remainder
of his obligation and Tom
became a junior associate
and relocated his family to Portage.
Tom left the firm in
1941 to accept a position
in the United States office of
Price Administration in Chicago.
He later characterized
his experience as the
greatest educational experience which an
individual could have.
The office reached directly and intimately
into almost all phases of human life.
Tom initially was the
expert in the rationing
of rubber truck tires.
The arrangement was not ideal.
Tom's growing family remained in Portage.
He worked in Chicago
through Saturday mornings
then took the Hiawatha train to Portage
to be with his family,
returning on Sunday evening.
Fortunately, on March 30,
1942, the Milwaukee regional
office of the OPA to which
Tom was posted was opened.
This geographic jurisdiction
consisted of 22 counties
and included Milwaukee,
Racine, Kenosha, Sheboygan,
Fond du Lac, Madison, Jamesville, Boyd,
and all areas in between.
His traveling for the OPA was an excellent
primer for his future
political campaigning.
Tom served as district
enforcement attorney
for the Milwaukee region.
This was an excellent legal experience.
It included referrals to the US attorney
for criminal prosecutions,
injunctions in both
federal or state part with associated
contempt proceedings, civil
suits for trouble damages,
and license suspension actions.
The Milwaukee office
under Tom's leadership
obtained treble damages awards
of more than $1.2 million,
commenced more than 2,300 actions,
and conducted more than
18,000 investigations.
At the end of the war,
it was apparent the OPA
would not long survive, and Tom once again
began to seek other employment.
After considering a small
firm in Winona, Minnesota,
he accepted an offer
from the largest law firm
in Milwaukee, Miller, Mack, and Fairchild,
now Foley and Lardner.
While at Miller, Mack, Tom
had a corporate practice
ranging from reviewing
pension and profit sharing
plans to ensure IRS
compliance to working on
stock splits and securities review
to wage and hour defense.
Tom enjoyed the work
and the generous salary.
His time at Miller, Mack was brief.
Like his father before him,
he was drawn to politics.
Naturally enough, Tom's
early political beliefs
were reflected by his father's stalwart
Republican outlook.
Thus a 12 year old Tom
set up tables on the
front lawn in Milwaukee
in 1924 and distributed
literature in support
of Coolidge and Dawes.
Something he never lived down.
(laughter)
In 1928, Tom attended an
Al Smith rally in Madison.
Though a letter he sent
his father makes clear
his interest as befitting someone who had
just graduated from high school
was more in the debate over prohibition
and the novel New York
City campaign ambiance
than in the democratic candidate himself.
Tom was a member of the
Young Republican Club
at Princeton and ventured out during
the 1932 presidential
election to play in a
makeshift band and deliver speeches
in support of President Hoover,
a man his father deeply admired.
Tom's politics evolved
during his time at Cornell
where he was president
of the Liberal Club.
He was initially drawn
to the progressive party
of Robert La Follette,
which had split from the
Republican Party in 1934.
He was active in the
Wisconsin Progressive Club
in law school and remained
involved during his time
in Portage where he served as county chair
of the Progressive
Party of Columbia County
and for one year a state chair of the
Young Progressives in Wisconsin.
Everything changed for Tom in July of 1948
when he got a phon call
from an acquaintance,
Jim Doyle, who indicated that
the Democratic Convention
was coming up and that a
number of young activists
who came to be known as the
Democratic Organizing Committee
were looking to fill a
slate for the election.
He asked Tom if he would consider running
for attorney general of
Wisconsin in the 1948 elections.
Tom's reply was characteristic.
"Why Jim, I don't even
know if I'm a Democrat."
(laughter)
The Progressive Party had
folded in the spring of 1946,
when young Bob La Follette,
then a US senator,
rejoined the Republicans.
Much of the senior leadership of the party
followed him into the Republican fold.
Young Bob had to run
in a Republican primary
to retain his senate seat and fared active
opposition from the stalwart leadership
of the party who despised
the La Follettes.
They were assisted in their
efforts by Wisconsin's
third party, the Democrats,
that outside of the
Milwaukee area had
atrophied into a largely
patronage based vestigial
and conservative party
with no elected statewide and virtually no
legislative representatives.
Young Bob ran a rather listless campaign
and was narrowly defeated by Joe McCarthy,
who ran on the slogan that
congress needs a tail gunner.
Though as it turned out,
it did not necessarily
get one in McCarthy.
With the demise of the Progressive Party,
Democratic leadership in Milwaukee,
including Bob Tien and
colorful ex socialist
mayor Daniel Hoan, along
with Madison liberals
including UW law professor
William Gorham Rice
and Julia Boghold, wife of
a UW philosophy professor,
welcomed young liberal
progressives into the party,
including Tom's friends
Jim and Ruth Doyle,
Carl Thompson, Horace Wilkie, Pat Lucey,
Henry Reuss, and Miles McMillan.
In 1948, Gaylord Nelson joined after an
unsuccessful flirtation
with the Republicans.
These self styled Young Turks were closely
aligned with the Americans
for Democratic Action,
an unabashedly liberal organization led by
Eleanor Roosevelt and Jim Doyle.
By 1948, the Young Turks had taken over
the Wisconsin Democratic Party.
Intrigued, Tom drove to Jefferson Junction
only several weeks before
the filing deadline.
The propose to hit included
Carl Thompson for governor.
He's the last one here.
Horace Wilkie for Congress.
Ruth Doyle for assembly,
and Gaylord Nelson for the state senate.
After a steak dinner and loosened up by
several martinis, Tom
agreed with two conditions.
He had plans to take his family vacation
in Dansville, so the
petitions would have to
be obtained by others, and he had to be a
part time candidate, as
he needed his law firm
salary to support his family.
Tom provided a wonderful
description of the
early Democratic campaign style.
"We Democrats had no significant money
"and most campaigns were
really on a shoestring.
"I drove to towns in
all parts of the state,
"played polkas over a
loudspeaker on the top
"of my car to attract attention."
(laughter)
If you can imagine that.
"Made street speeches
hoping newspapers would
"report each day's press release,
"got acquainted with as
many people as I could
"in stores and on the streets,
"stood at factory gates in early hours
"shaking hands with people coming to work,
"and introduced myself at weekend picnics
"of ethnic and other organizations."
On election day, the Young
Turks had done remarkably well.
Gaylord Nelson defeated Fred Risser,
a progressive state senator from Madison,
who had followed young Bob
into the Republican party.
Ruth Doyle won in the assembly.
With Pat Lucey and a
youthful Bill Proxmire.
You can see Prox there
second from the end.
He was indeed quite youthful.
Two of the state's 10
congressional districts
in Milwaukee also went to Democrats.
Former socialist Andrew B.
Miller and Clement Zablocki,
there pictured with Judge Fairchild.
The only statewide
success for the Democrats
was Tom's victory for attorney general.
With the highest vote total
in history for a Democrat
and the first statewide since Ryan Duffy's
one term in the US senate won
in the 1932 FDR landslide.
Edward proudly administered
the oath of office.
Not to diminish Tom's achievement,
but he was certainly in the
right place at the right time,
as his Republican opponent
was actually repudiated
by many of his supporters
after he was charged
with public intoxication and urination
on a bank window in downtown
Madison during broad daylight.
(laughter)
Perhaps a Depression era
reflection on the banking industry.
(laughter)
Reminded me of the scene
in Bonnie and Clyde
where they informed the
recently evicted farmer
that they rob banks.
Parenthetically, his
opponent was not punished
on the grounds that
his conduct came within
the reach of the constitutional right to
free speech and expression.
(laughter)
Only in Madison.
During Tom's one term as attorney general,
he displayed traits that were to be seen
in his subsequent judicial career.
Principle decision making
without regard to political
consequences and a strong
support for civil rights.
Tom investigated racial
discrimination and access
to municipal pools in Beloit.
The city maintained two.
One was a 13,000 square foot modern pool
traditionally used
exclusively by white citizens.
The other a 2,250 square
foot older facility
used by African Americans.
In 1950, four African
American youths who showed
up at the larger pool, as the paper said,
were persuaded by a pool administrator
to use the pool traditionally
reserved for blacks.
As a result, Tom brought
a controversial action
against city manager AD Telfer seeking an
injunction against future
racial discrimination.
As reported by Aldrich
Revel in the Capital Times,
a name from my youth,
in a deposition taken
by Tom Fairchild himself, the city manager
testified that he had never heard of any
whites swimming in the smaller pool,
that he approved of the
action of a pool attendant
persuading the four young
children not to swim
in the larger pool, and
he was familiar with
state law prohibiting
denial of equal enjoyment
of public accommodation
on account of race,
that he had never
personally issued a written
or verbal order to discriminate,
but he intended to comply
with the law in the future
and that if an African
American were to present
himself at the larger
pool, it would be the duty
of the attendant to admit him.
Because of problems of
sustaining jurisdiction
since the racial discrimination
wasn't informally
enforced custom and the jury,
and Tom admitted that
he was unfamiliar with
session 1983 at the time,
and the sworn promise
of future access to the
new pool without regard to race,
and at the express request
of Governor Rennebohm,
Tom dismissed the suit without prejudice.
Tom's tendency to in
effect assert damn the
political torpedoes, full speed ahead,
could be seen in his
willingness to provide
opinions as to the legality of politically
sensitive practices.
Examples included an opinion
concerning the legality
of anti vivisection as
blocking enforcement
of a 1949 law requiring humane societies
to honor medical school
requisitions for stray
dogs from the pound.
That's one you can't win on.
An opinion validating
the setting of standards
for public welfare programs funded jointly
by state and federal
governments and administered
by the counties, many of which were paying
lower benefits than state
and federal law required.
An opinion that the city
of Milwaukee and its
socialist Mayor Frank Zeidler could issue
rent control rules to protect the health
and safety of the public.
And an opinion that
public school release time
for religious instruction
for Roman Catholic
school children was a violation
of the state constitution.
We all know, I think, that the most deeply
unpopular opinion he
issued was one declaring
four popular radio shows
and one television program
that gave away cash
prizes to the audience,
including Stop The Music, launched in 1948
and emceed by Bert Parks,
to be illegal lotteries.
The level of hostility
can be seen in a letter
to the Milwaukee Sentinel
from Miss Pat McKinley.
"What is the world coming to?
"A few people telling
the people of our state
"what they can listen to
and what they can watch.
"This seems more like things we were told
"happen behind the iron curtain."
"Fairchild's action in
this matter is going to
"make a lot of people
vote for someone who can
"apply themselves to the job
and not waste people's money."
This was one of literally
hundreds of such letters.
As the only statewide
Democratic office holder,
Tom was pressured to move
up the ticket in 1950
and run either for
governor, vacated by the
retirement of Republican Oscar Rennebohm,
or to challenge the state's popular aptly
named senior citizen, Alexander Wiley.
Despite good reasons to keep
the attorney general's position
including the political
advantages of an incumbent,
not to mention a steady
salary to support his family,
and this is a recurring
theme for Tom Fairchild,
he gave into the pressure an
announced for the senate post.
First he had to traverse
a difficult primary
against Dan Hoan, former Milwaukee mayor,
a Milwaukee man named
Sanderson who enjoyed
some labor support, and my favorite,
Lavvie Dilweg, a popular
multi-sport athlete
at Marquette University
who played for the Packers
while practicing law in Green Bay.
(laughter)
Tom won the primary and
faced the well funded Wiley.
It was one of the first
campaigns that relied
to an extent on radio and television
to get out the word.
I'm gonna see if I can do this.
Can you turn it up?
(muffled music playing)
That was hard to find.
(laughter)
He ran on a remarkably liberal platform.
And this will really
surprise you, perhaps.
In an October 1950 discussion panel,
Tom stated prescient
views on health insurance.
"Do I believe that the
high cost of medical care
"causes middle and low income families
"to delay needed medical care, I do.
"Do I believe that the high
cost makes it impossible
"for the great mass of people to obtain
"preventative care, I do.
"Do I believe that our
social security system
"should be expanded so
as to provide a means
"with which to pay the
cost of medical care, I do.
"I've told you where I
stand on the principle
"involved in government health insurance.
"I view it as the projection
of the social security
"insurance system so as to provide funds
"to meet the costs of medical care."
Remember, this is at a
time when Joe McCarthy
was in the senate.
He also took a strong position
on income redistribution.
"America must continue to
improve its economic lot
"by leveling up rather than leveling down.
"We must make certain that
this leveling up process
"is continued in the
future and not the idea
"of letting the bottom income groups exist
"on the crumbs that fall from the table
"of a wealthy minority."
Finally, responding to
practices that he found
deeply un-democratic and
personally offensive.
He was one of the very
first to attack Wisconsin's
junior senator, Joe McCarthy.
On February 9, 1950,
McCarthy famously told an
audience in West Virginia
that the state department
was thoroughly infested
by Communists and stated
for the first time that
he had a list naming
any individuals who
would appear to be either
card carrying members or certainly loyal
to the Communist Party.
Tom charged in a similar
speech by McCarthy
at the State Republican
Convention was an admission
that the GOP could only win if it instills
in the minds of Americans
hysteria and fear
and further accuse
McCarthy of smearing the
state department with wild
charges and cruel innuendo.
McCarthy replied to a
Fairchild telegram demanding
he release the names on his
infamous list as follows.
"I have been too busy
on more important things
"to have had the time to
re telegram some letters,
"much less to answer crackpots," Tom,
"who want to protect the
Communists and perverts
"in the state department."
Despite his aggressive campaign,
Tom was defeated by a 55 to 45% vote
and once again found himself unemployed
until President Truman appointed him
United States attorney
for the western district
of Wisconsin in Madison.
The Democrats focus in 1952
was on defeating Joe McCarthy.
Gained a little weight in the two years.
Been there.
(laughter)
He had attracted negative
attention from liberals
in both parties, such as Tom
Fairchild as early as 1950,
and respected newspapers
such as the Capital Times
and the Milwaukee Journal.
McCarthy took to the offense,
accusing the editor of the Capital Times
of being a Communist and the paper itself
as serving as the red mouthpiece for the
Communist Party in Wisconsin.
In 1952, Democrats considering
a run against McCarthy
included State Senator
Gaylord Nelson, Jim Doyle,
Henry Reuss, an unsuccessful candidate for
Milwaukee mayor and attorney general,
and an uncertain Tom Fairchild.
The party had no endorsement mechanisms,
so the candidates sought to avoid an
expensive and destructive primary.
Jim Doyle bowed out
first in favor of Nelson
after a remarkable arbitration proceeding
in which Miles McMillan,
editor of the Capital Times,
represented Nelson.
And Morris Reuben, editor
of the Progressive Magazine,
represented Doyle.
Robert Lewis, who worked for
the National Farmer's Union,
served as the judge whose
charge was to determine
who would be the strongest candidate
to run against McCarthy.
And he selected Gaylord Nelson.
Reuss remained intent on running.
In November of 1951, the
Democratic organizing committee
considered who would
be the best candidate,
with Nelson again the
strongest, Tom Fairchild second,
followed by Reuss and Doyle.
Despite this sentiment,
Nelson dropped out,
leaving Reuss the favorite
to gain the nomination.
An informal effort was
organized in Milwaukee
to draft the uncertain Tom Fairchild.
Obstacles existed,
however, to his running.
Tom was in the US attorney
and could not participate
in a campaign for the nomination.
And more fundamentally,
there was the recurring
problem with the need of a regular salary
to support his family.
This is my favorite picture.
Madison and Milwaukee
liberals continued to
press for a Fairchild candidacy.
After a period of indecision,
Tom agreed to run in a primary with Reuss.
Tom prevailed in an
extremely tight election
by some 3,000 votes of the 190,000 cast.
Tom waged a characteristically diligent
and exhaustive campaign.
Thus on Fairchild day in
Milwaukee, his schedule included
9 o'clock, Republicans
for Fairchild breakfast.
10 o'clock, Reuss backyard rally.
11 o'clock, welcome by Mayor Zeidler.
12 o'clock, testimonial luncheon.
2 o'clock, corner speech
where he would go out
to a busy street corner and give a speech.
2:45, another corner speech.
4:15, a speech at Southgate.
This was probably his favorite part.
5 o'clock, sandwiches at Kobacks Club.
7:30, parade.
8 o'clock, Veterans for Fairchild party.
8:30, Fairchild radio address.
He conducted a 17,000
mile campaign entirely
by automobile and garnered public support
from national Democrats
intent on defeating McCarthy,
and including presidential
candidate Adlai Stevenson
and Senator Estes Kefauver of Tennessee.
Eleanor played a significant role.
In a wonderful letter to Miss Pearl Cluge
she stated, "I shall
plan to meet you at the
"Business and Professional
Women's Club meeting.
"Perhaps these bits of
information about me
"will help with your introduction.
"Wife of Thomas E. Fairchild,
former attorney general
"of the state and former
United States attorney
"for the western district of Wisconsin,
"now the Democratic candidate
for United States senate,
"mother of four children
from three and a half
"to 13 years of age,
active in the leadership,
"active in the League of Women Voters
"and in the PTA and school activities,
"presently very much engaged
in my husband's campaign."
Tom's campaign was the premiere race
statewide for the Democrats.
As reported in the
Wisconsin State Journal,
while Thomas E. Fairchild
has had considerable
assistance in his
campaign against McCarthy,
gubernatorial candidate Wayne Proxmire
has continued to go it
virtually single handed.
He has had to write his
own ads and radio talks,
put out his literature,
and get his releases to the newspapers.
He and his wife have done most of the work
on the mail and Proxmire has been his own
driver on his endless
travels through the state.
This situation, along with
fundamental differences
in personality and political approach,
led to a sometimes thorny
relationship between the two.
Tom delivered a remarkable
address in Burlington
that reflected his deep seated rejection
of McCarthy's tactics.
"We believe in America
the truth is developed
"for free discussion of ideas.
"Ideas cannot be killed by force.
"If an idea be wrong,
it must be out thought
"and proved false by logic and experience.
"You can't kill it by punishing
the man that holds it.
"When we destroy a man's character,
"we take away from his dignity of soul.
"We take from him something
that money can't buy,
"something which may never be regained.
"When we stop and examine this spectacle,
"it revolts us.
"And yet the floor of
the United States Senate
"has turned into an arena of crosses
"upon which the characters of
men and women are crucified."
Tom's attack on McCarthy
were supported by a
self styled truth squad
which followed the senator
throughout the state,
challenging his assertions
and emphasizing his poor record.
Truth squaders included
at one time or another
Gaylord Nelson, Bill
Proxmire, Miles McMillan,
Carl Thompson, and Horace Wilkie.
A confrontation in La Crosse was typical.
The senator was speaking
at a service club luncheon
and through an open window,
attendees could hear
Nelson and Proxmire
aggressively heckling McCarthy.
(laughter)
During the question period
McMillan, who was in the
audience, rose to query the senator.
"Get him out," McCarthy shouted.
"That's a representative
of a communist newspaper."
Attendees unceremoniously
escorted McMillan
out of the hall and his
questions remained unanswered.
Tom courageously critiqued
not only McCarthy's
charges of Communist
sympathies but also the
system put in place by
the Truman administration
in 1947 to assess
government employee loyalty.
Calling for revocation of
the program, Tom concluded,
"Wash of arbitrary authority is a risk
"inherent in democracy.
"The present loyalty
program is an abridgment
"of individual liberty and
every such encroachment
"tends towards totalitarianism.
"To preserve freedom,
we must have the courage
"to take the risks that
are the price of freedom."
In spite of Tom's spirited campaign,
the extra resources supporting his efforts
and active support from the truth squad,
McCarthy was reelected
by a 54 to 46% vote.
The beneficiary of
Republican crossover votes
carried him comfortably ahead of both
Stevenson and Proxmire.
Within days of the
election, Tom received many
telegrams of gratitude for his good fight.
The words of Hubert
Humphrey, who had long served
as Wisconsin's informal
democratic senator,
are indicative of the
respect Tom had earned.
"I am sick at heart at
the results in Wisconsin.
"You ran a beautiful campaign
under great handicaps.
"You deserve to win.
"We are in a difficult
period in American politics,
"however, and the odds
simply were against us.
"We have a great responsibility
here in the Midwest,
"Tom, to keep the liberal
message before the people."
Once again without a job,
Tom joined Floyd Claps
and Erv Churney to form
Fairchild, Churney,
and Claps in Milwaukee,
where among others he
successfully represented
a man subpoenaed to testify before the
House Un-American Activities Committee.
In 1956, Tom decided to run for a seat
on the Wisconsin Supreme Court.
The idea originated with
Edward, who was retiring.
Tom filed his papers in December.
There was a three candidate primary,
which Tom won handily,
followed by his two to one
victory in the general election.
While Tom participated
in many cases during
his tenure on the court,
I will briefly discuss two
that reflect his record
of continuous commitment
to equal opportunity
and willingness to meet
a politically unpopular opinion.
The first case is Ross
versus Ebert in 1957,
an action brought by two African Americans
denied membership by the bricklayers union
undisputedly on the basis of their race.
The two sought injunctive relief requiring
the union to accept them as members.
The majority held that
like other associations,
trade unions could
establish qualifications
for membership and the
courts were powerless
to compel the admission of an individual
into such an association.
The court found no remedy provided by the
Fair Employment Code
and rejected any equal
protection claim because of
the absence of state action.
Tom filed a vigorous dissent.
He believed that unions
were distinguishable
from other voluntary
associations and should
be subject to judicial restraint if they
discriminated based on race.
He memorably observed, "We
are engaged in a struggle
"to make equality and freedom
realities for all Americans.
"To be denied the economic
opportunity to work
"out one's destiny as
best he can solely because
"of a racial or religious difference
"impairs the very substance
of citizenship itself.
"Perhaps the degree of
the impairment is so great
"and the character of
the rights impaired so
"fundamental that the
wrong must be recognized
"and remedied by the judicial branch,
"even in the absence of
action by the legislature."
And certainly the Fairchild clerks will
recognize that style.
He also would have found
an equal protection
violation resolving the
state action question
by finding that state
court refusal to invalidate
a private agreement to
discriminate based on race
would violate the 14th Amendment.
The dissenting opinion
earned Tom the praise
of President Truman.
It also had legs, as the
legislature subsequently
passed a law providing effective remedies
for racial discrimination by unions.
The other decision I will
address was mischievous
and caused trouble, not so much for Tom,
but for his friends and colleagues.
The case is McCauley
versus Tropic of Cancer,
a 1983 obscenity dispute
in which Tom authored
the majority opinion concluding
the work was not obscene.
The battle of experts
in this case included
professors from UW Wisconsin
in Madison and Milwaukee
on behalf of the book
and clergymen from three
faiths in support of the prosecution.
Tom concluded, again, in a
very Fairchild understatement,
"Our reading of the book has
engendered no enthusiasm."
(laughter)
"We do not endorse it.
"Our judgment will preserve
its access to the marketplace
"where Wisconsin readers
may buy it if they choose.
"In terms of the good
that this particular book
"is likely to accomplish,
we probably do no
"great thing in preserving it.
"Our function, however,
is not to determine the
"quality of the book.
"Our duty is to respect
and enforce in full measure
"the freedom of expression guaranteed by
"state and federal constitution."
Chief Justice Reynolds'
dissenting opinion was blunt.
"The book is a collection of anecdotes
"with which few exceptions
describe in detail
"the sexual proclivities of
a number of depraved men.
"The author's account of their
practices and perversions
"in the erotic arena are
described in the vilest
"terms known to the English language.
"Their portrayal is patently offensive."
The blowback was immediate.
One John Jen as representative,
he wrote to Tom,
"A mother's lot is hard enough without
"having this filth around,"
(laughter)
"So that youngsters can get ahold of it."
And more ominously, "I want
to vote in the April election
"but will not vote for any
justice of the Supreme Court
"who will not try and
get rid of the filth."
Legislators represented
by several letters from
Republican assemblyman
Ray Heinzen of Marshfield
were also critical.
"Having read enough of
this book to make one
"retch with disgust, I must
come to this conclusion.
"The court has sadly
misjudged the contemporary
"community standards of
decency of a great many
"Wisconsin communities, including my own."
But perhaps the most serious consequences
of this opinion were confronted first by
Tom's good friend, Justice Horace Wilkie,
and subsequently by another friend,
Justice Nathan Heffernan.
Thus when Wilkie stood
for retention in 1964,
he confronted and
aggressive and well funded
campaign from Howard
Hoyle Jr. of Beaver Dam,
who ran with the active
support of conservative
groups throughout the state.
Hoyle asserted that the
high court's philosophy
had contributed to the
distribution of obscene
literature, the breakdown of family units,
and other symptoms of moral decline.
He lashed out at Wilkie for his vote
in support of the majority opinion.
Wilkie, who had five
daughters, was vilified
and one of his daughters, a
friend of mine in college,
reported receiving anonymous
telephone calls at home
that cruelly made alarming
and defamatory attacks
on the family values and
character of the justice.
While Wilkie survived these
attacks and was reelected,
the election ultimately
helped transform the nature
of Wisconsin's Supreme
Court elections from a
matter of professional
confidence and retention
to a well funded and
aggressive attack based on
votes taken in controversial cases
or on the presumed political ideology
and social beliefs of
a particular justice.
Ironically, Heffernan, who
was not even on the court
when the decision was
rendered, was forced to
overcome similar difficulties.
Hoyle, running for a second time,
seized the phrase in a Heffernan opinion
referring to the age of enlightenment,
declaring that this referred favorably
to an era characterize
by widespread breakdown
of the family unit, free flowing filth,
soaring incidents of teenage indiscretion,
disregard of personal responsibility,
and monstrous growth in the power of
government over people.
After the fuss, and
Heffernan was reelected.
After the fuss, it was
perhaps surprising when
Tom Fairchild, the author of the opinion,
ran unopposed in 1966,
seeking a second term.
Mr. Hoyle had run out of gas.
After his retention,
his future was bright.
Tom would become chief
justice in just two years
and could have held that post for at least
eight years with another
six years after that
if reelected to a third term on the court.
However, shortly after his election,
Tom was confronted with
a difficult choice.
Judge Ryan Duffy of the
United States Court of Appeals
for the Seventh Circuit finally announced
that he was assuming senior status.
An appointment to the vacancy
was Tom's for the acting,
with his two long term associates
Gaylord Nelson and William Proxmire,
state senators and LBJ as president.
This was a difficult decision for Tom.
He enjoyed the work of the
Wisconsin Supreme Court,
appreciated the collegial and respectful
relationship of the
justices, and his position
on the state's historic
court of last resort.
He also very much looked
forward to assuming
the role of chief justice that his father
had held immediately prior to his term.
Characteristically, he sought advice,
this time from state
Supreme Court luminaries
including Walter Schaffer of Illinois
and Roger Trainer of California,
as well as those in Wisconsin
whose advice he valued,
including Professor Willard
Hurst of the UW Law School,
Leon Finegold, and old friend Jim Doyle,
by then a distinguished
United States district judge.
A former colleague, William Winger,
who had been defeated
seeking an additional
turn on the court,
unquestionably gave Tom pause.
Winger emphasized a lifetime
tenure of federal judges,
the continuing salary for life,
and the difficulty he
had experienced starting
a new legal career
relatively late in life.
Tom also could have gone to school on the
recent retention elections of his friends
Horace Wilkie and Nate Heffernan.
And anticipated the changing nature of the
Supreme Court election process
as well as the corresponding
corrosive effects
of the personal and working
collegial relationships
among the justice that
would inevitably follow.
In any event, Tom elected to
accept the federal appointment.
In 1966, Chief Judge John Simpson Hastings
met with Tom and shared his perspective,
that it was best if all
active judges on the
Seventh Circuit relocate
their residence to Chicago.
Tom respectfully but firmly declined
to move from Milwaukee
where he planned to maintain
his chambers in the
historic federal courthouse.
Tom did ultimately relocate to Chicago
in the late summer of 1974,
in anticipation of his appointment as
Chief Justice the next year.
This was the year of my clerkship,
and I had the unique experience of working
in the Milwaukee courthouse
during the summer
months of 1974, and then moving to Chicago
with my wife in late August,
where I spent the
remainder of my clerkship
in the Mies van der Rohe designed complex
with its Alexander Calder
stabile entitled Flamingo,
which was dedicated in
1974 by a circus parade
in which Mayor Daley and
Calder led a procession
of elephants, calliopes,
and a team of 40 horses
up State Street in celebration of the work
and providing me with amazing
lunchtime entertainment.
This is quite changed from
Mayor Daley's persona,
prior persona.
This resulted in a wonderful
opportunity for me.
In September and October,
while we relocated to
an apartment located
on the near north side
of Chicago, my wife was in
Europe on a graduate fellowship.
At the same time, while
Eleanor was unhappily
closing down their home in Milwaukee,
Tom had temporarily
moved to what can only be
characterized charitably
as a somewhat run down,
even seedy SRO a bit
further north on Clark.
Just absolutely bewildered as to why
he picked that particular place.
We were sure that his fellow tenants
had no idea who their neighbor was.
Largely for lack of much
to go home to in the end
of the day, we often
worked in chambers until
7:00 or 7:30, adjourned
to Berghoff's restaurant,
closed down the politically
incorrectly named
gentleman's bar, consumed
a dinner of German
sausage and dark beer, and walked slowly
north to our respective lodgings.
This was an opportunity
for me to get to know
the judge well from the
very start of my clerkship
and I gained a keen
appreciation for his fond
memories of his political career
and abiding love for
the state of Wisconsin.
Indeed, we often joked
that when driving home
to Wisconsin on the weekends,
we both felt that we
should stop in south Beloit
to change our Illinois license plates
to the preferred Wisconsin
ones so no passing
motorist could get the wrong impression.
(laughter)
Tom authored many
important opinions during
his time on the Seventh Circuit.
Certainly the best known
was his majority opinion
in United States versus
David Dellinger et al
or the Chicago Seven appeal.
The record in that case
was more than 22,000 pages
and as was his custom,
Tom and his clerks wrote
the entire record before
preparing the final opinion.
Tom's opinion is notable not only for its
length and extraordinarily
fact rich texture,
but for the deft touch of its author.
In a trial laden with
misbehavior, name calling,
and taunting by everyone
involved and featuring
the dramatic divide
between ethos and sense of
propriety at the elderly trial judge
in collision with the '60s in your face
admittedly provocative
behavior of the defendants,
the opinion is measured and careful in its
discussion on judicial and
prosecutorial overreaching.
In the end, it is marked
by the noble kindness
of its spirit as much as
for its heralded analysis
of appropriate voir dire in
high profile political trials
and the balance of judicial discretion
and appropriate behavior
of all parties involved.
His lifelong commitment
to civil rights is also
evident in such opinions as Waters versus
Furnco Construction Corporation,
an employment discrimination case in which
although later reversed
by the US Supreme Court,
he stated, "The historic
inequality of treatment
"of black workers seems
to us to establish that
"it is prima facie racial
discrimination to refuse
"to consider qualifications
of a black job seeker
"before hiring from an
approved list containing
"only the names of white bricklayers.
"How else will qualified black applicants
"be able to overcome the racial imbalance
"in a particular craft itself,
"the result of past discrimination?"
There is discernible a clear
bright line over 30 years
from the four lads seeking to swim in the
Beloit Municipal Pool reserved by unbroken
custom for whites in the late 1940s
that he challenged while attorney general
to the Milwaukee bricklayers
union that consciously
discriminated based on
race that he condemned
in his 1957 dissent on the
Wisconsin Supreme Court
to the next generation
of black bricklayers
denied employment in Cook County in 1977
because they had not
been included in a list
of qualified union workers
in a trade that had
historically discriminated
against them based on race.
Tom served as a judge
on the Seventh Circuit
from his appointment in 1966 until 1975
when he became Chief Judge
of the circuit for six years
until 1981 when he assumed the position of
senior judge until his
death on February 12, 2007
at the age of 94.
He gave a fitting
summary of his experience
as a jurist.
"I have indeed enjoyed
the work of an appellate
"judge almost 10 years on
the Wisconsin Supreme Court
"where every case got the
attention of seven justices
"and more than 30 on the Seventh Circuit,
"where most cases are
considered by only three.
"I have not found decision of cases easy.
"Where there are critical
choices to be made
"in the course of
decision, my own insistence
"on seeing both sides has often made me
"agonize over them.
"Nevertheless, there was
satisfaction in careful
"analysis and working out a sound result."
I end with the words of
his former law partner,
Erv Churney, who memorialized
Tom for all of us
who had the privilege of working with him.
"How does one do justice
to honoring a person
"of such extraordinary achievement
"and such magnificent human
qualities as Tom Fairchild?
"Those of us who had
the opportunity to share
"a part of our lives with
him have been enriched
"by that experience.
"He was a role model for many of us
"in demonstrating that
good can triumph over evil
"and that integrity can
triumph over opportunism."
And I apologize here
for the sentimentality.
(calming music)
♪ Time it was and what
a time it was, it was ♪
♪ A time of innocence ♪
♪ A time of confidences ♪
♪ Long ago it must be ♪
♪ I have a photograph ♪
♪ Preserve your memories ♪
♪ They're all that's left you ♪
(applause)
- Talk about extraordinarily fact rich.
What an amazing presentation.
Thank you, I'm speechless, truly.
But I'm not fully speechless,
because we have a gift for you.
- I know.
(laughter)
I appreciate it.
- Let me say that after the presentation,
we invite you to join us in the lobby
for a reception and there you can see
the original gargoyle that fell off the
law school building when it was demolished
and which I think is viewed by many of us,
because it survived without
any attention whatsoever,
as a symbol of good luck and
the law school's perseverance.
Sadly what we've done to represent that
is made replicas.
And I gotta tell you, they
don't capture the original,
but they are nonetheless a symbol of the
law school's immense
gratitude and appreciation
for a truly remarkable lecture, Nils.
Enjoy your gargoyle.
(applause)
Let's thank Professor Olsen once more
for a wonderful lecture and then please
join us for the reception.
(applause)
- I think first if there are any questions
that I can answer, I will.
I mean, obviously I don't know everything
about the judge's political career.
Though it was enormous fun, I must admit,
reconnecting by immersing myself in the
archives of the historical society.
Most of the pictures actually came from,
believe it or not, eBay.
I was incredibly surprised.
So I'd be happy to answer
any questions you have.
- [Man] I'll ask one.
- Sure.
- Having looked at Fairchild
and his dad's career
and how you see he had some
of the things they share,
Tom held incredible
reverence for his father.
What of those qualities did
he try to emulate as a judge?
- Well, I think his father
was a very cautious judge.
He was very much of the stalwart.
Although it was very
interesting to read his opinions
and to think about the difference between
what it meant to be a conservative justice
then and what it means now
in terms of the approach.
He would have a get
together where all of the
judges would come to his
chambers every Friday,
drink tea, I'm sure Tom would
have had something else.
(laughter)
And as you said, I mean,
I think Tom was very much
revered his father and
his father's tradition.
He was a very careful judge.
He thought very carefully
about his positions
before he took them, I think.
I can think of many cases
where he stepped back
in order to try to avoid further negative
precedent from the Supreme Court.
So in that sense, and also their
deep commitment to public service.
I really do think that this story is one
really unmatched.
And the most amazing thing is to think of
Edward Fairchild
graduating from high school
and going on to write
1,000 majority opinions
on the Wisconsin Supreme Court.
Very complex opinions that
takes a good deal to read.
They are really unmatched,
I think, as a family
in terms of making public opinion,
with the possible exception of Ogelbaum,
who certainly Edward had very
little good to say about,
who Tom followed very closely, I think,
until the demise of the
party and chose wisely
and became a Democrat.
It was very interesting
to see the unbroken
line of public engagement
politically as well.
And it was a bit of a
surprise to see exactly
how liberal Tom was in the '50s.
Running that sort of a
campaign at that time
took a lot of courage.
And taking on the Truman loyalty oath
at a time when Truman was president,
he was running as a Democrat,
I think was most unusual.
Yes?
- [Woman] Do you have the letters between
him and his father he
became anti-political?
- There are almost no letters between
him and his father in
the historical society.
I don't know if he chose not to...
I mean, those two were
virtually the only two,
the first one, and then the one describing
the Al Smith rally.
- I've always been curious about how he...
His demeanor when I knew
him was very reserved
and almost shy, it seemed like.
And I can't, I have a hard time imagining
him out glad handing
people trying to get votes.
Did you get any sense of
his personality as a...
- Only that this really was, I think,
the favorite part of his life was when
he was in politics.
I think he really enjoyed
what he learned from traveling through the
state of Wisconsin, the difference between
the various areas, the
difference between people,
meeting all those people.
He certainly was not Bill Proxmire.
I imagine the line
moved a lot more quickly
at the factory when he was shaking hands,
because the conversations
were probably shorter.
But he must have been
able to really submerge
his understated self to make those
fiery political statements, particularly
in the '52 election against McCarthy
when he talked about the senate being
transformed into cavalry.
It's pretty remarkable.
- I think that when he
had his political career,
I remember him talking about he had
memorized every bus schedule in Wisconsin
and he knew absolutely, he could remember
the names of absolutely every politician
and every little bird who was the head
of the Democratic party, who the players
at the time were, and he just had this,
not I mean, phenomenal memory,
but I noticed he cherished that.
- Well, the other remarkable story is this
group of veterans and federal workers
who just transformed the Democratic party
in a very short period of time.
And certainly that was
a defining moment for
Tom Fairchild, his work
with Jim and Ruth Doyle.
Ruth Doyle was, I had the good fortune of
knowing her quite well, and
she was just remarkable.
She was the one woman
in that group who was
a member of the Young Turks and actually
succeeded in elected
office and held the post
of some leadership.
It was really something to see.
It was fun to go back over all this
and find all these lawyers.
Well, before you go, and
you don't have to stay
if you're not interested in hearing it.
It was a little long to put in the talk,
but I have Edward Fairchild
describing in his own words.
- [Edward Fairchild] Well,
I always kind of wanted
to move up in life and be a lawyer.
But when I graduated from high school,
the first job I had was...
Well, even before I
graduated, I worked part time,
but then it was kind of a joke.
I was working part time
with (audio distorts)
And I used to set type
and run a hand press
and run out and get the rooms
and I had a little time keeping books for
SC Walker, Hardware Merchant.
While I was in the newspaper
business in (audio distorts)
Walker was going to have a sale of
I remember now, it was soap stones.
Some article, anyway.
That he was going to
have a sale at 99 cents.
And that was a fair
price for a soap stone.
A lot of people nowadays don't
know what a soap stone was.
(audio distorts)
Well anyway, they were soap stones.
And in setting type,
instead of laying the nine,
I misplaced the one nine upside down.
So it was 69 cents.
(audio distorts)
Well, when the bills, we
were running off some bills
that were going to be passed.
Fewer bills had gone out.
When Mr. Walker saw it, he
came up to protest, of course.
And we'd talk it over, what thing to do.
And I said to him, well,
we'll go out and collect
those bills if we can
and you put the rest of your
soap stones down in the cellar.
After a while, we'll
re-advertise them again
And whatever (audio distorts)
I'll have to make up to you in some way.
He said something about the importance
of a printer being exact in details.
And he said, you have to
be precise at everything
when you're dealing with other people.
And he said, I think you're
doing the right thing,
Mr. Walker, but he said,
I suggest now that you
carry out your (audio distorts)
(laughs)
- He's got the same kind of laugh
Judge Fairchild had for sure.
But there you get his true recollection.
There is a remarkable oral history taken
by the historical society
of Edward Fairchild
that's on reel to reel tape
and I got it digitized.
So thank you for your attention.
I ran over the time.
I know that you're supposed to run over,
but I appreciate it.
(applause)
