Hon. Abner J. Mikva

Summary of the Oral History of Hon. Abner J. Mikva 

By Elizabeth Runyan Geise 

The oral history of Judge Abner Mikva is a compelling read. His career spanned the second half of the Twentieth Century. He served in many roles – judicial clerk; lawyer in private practice; state legislator in Illinois; five-term member of Congress from the Chicago area; judge and eventually Chief Judge of the D.C. Circuit, where he served for 15 years; and capping his career, as White House Counsel to President Bill Clinton in 1994-95. The breadth of his experience in all three branches of government is unmatched, particularly as, in recent years, we have had fewer and fewer judges with significant experience as legislators. The oral history was conducted by Stephen J. Pollak through nine interviews with Judge Mikva over a three-year period from May 1996 to May 1999.

The oral history begins with a discussion of Judge Mikva’s childhood in Milwaukee. Born in 1926, Judge Mikva was a first-generation American, with parents who emigrated to the U.S. from Ukraine. He describes his family as “dysfunctional.” His parents did not get along, and the family’s issues were exacerbated when his father lost his job in the early 1930s with the onset of Great Depression. Judge Mikva’s father did not get another job until he was hired by the WPA in 1936 or 1937, and the family was forced to survive on relief. Judge Mikva describes the Great Depression as the “overwhelming event of my childhood.” It also likely brought about his liberal political leanings; he saw the Great Depression as something “so terribly wrong and unfair subjecting a huge part of the population to this great poverty.”

Similar to many in his generation, Judge Mikva managed only one year of college before enlisting in the Army in 1944. He went back to college in 1946, after having met and married his wife, Zoe. He then entered the University of Chicago Law School without a college degree, which was allowed at that time. As Judge Mikva put it, he entered law school “with great trepidation” due to his “pedestrian education,” which he blamed both on himself and on the schools he had attended. But in law school, Judge Mikva thrived, became the editor-in-chief of the University of Chicago Law Review, and had as classmates, Professor and later Judge Robert Bork, and Senator Patsy Mink of Hawaii – one of three women in his class. He graduated in 1951.

Judge Mikva then clerked on the United States Supreme Court for Justice Sherman Minton. He counted as fellow clerks William Rehnquist, later the Chief Justice of the U.S. Supreme Court, Newton Minow, a high school friend and later head of the Federal Communications Commission, and Abe Chayes, an international law scholar and later professor at Harvard Law School. He clerked during an interesting term, which included the Youngstown Steel Seizure cases, which tested the limits of presidential power, and Rochin, the stomach pumping case that set out the limits of substantive due process.1 The oral history includes Judge Mikva’s views of some of the justices during this time, including Justices Jackson, Black, Douglas and Frankfurter.

Following his clerkship, Judge Mikeva worked in private practice in Chicago for Arthur Goldberg, who later joined the U.S. Supreme Court, and who had impressed Judge Mikva when he argued the Steel Seizure cases. In 1955, Judge Mikva decided to run for the Illinois state legislature, serving there from 1955 to 1966 and helping write a new criminal code and a new mental health code. In 1966, Judge Mikva first ran for Congress, an election he lost by just 2,000 votes. Judge Mikva ran again in 1968 and served from 1968-72, lost reelection in 1972, and was then reelected and served again from 1974-79. His elections were always very competitive. Judge Mikva discusses the issues of the day – primarily his opposition to the Vietnam war and civil rights issues. He talks about legislators he admired, including Tip O’Neil, Mike Mansfield, George Mitchell and Phil Hart, and his role models, including Robert Kastenmeyer, Don Fraser, Ben Rosenthal, Phil Burton and Don Edwards.

In the late 1970s, two seats were added to the D.C. Circuit, and President Jimmy Carter appointed Judge Mikva and Patrica Wald. The National Rifle Association spent $1 million to defeat Judge Mikva’s nomination, but he and Judge Wald were sworn in together in September 1979.

Judge Mikva discusses his years on the D.C. Circuit, the opinions that best reflect his jurisprudence, and his relationships with some of the other judges. He mentions that, before his tenure on the court, there was understood to be friction between Judges Burger and Bazelon and their allies, particularly on criminal law issues, but notes that friction had largely passed by the time Judge Mikva arrived. By then, Judge Burger had left the circuit and become Chief Justice of the U.S. Supreme Court. Judge Mikva also explains the contentiousness that returned with the appointment of Judge Silberman. Judge Mikva talks about his “strong warm feeling” towards Judge James Buckley, despite his conservatism, his good relationship with Judge MacKinnon, with whom he disagreed about almost everything, and Judge Scalia, who was “very gregarious” and “great fun to be around.” He also discusses what, in his view, makes a good appellate opinion: focus on a single issue, enough facts to understand but not so many that the case is easy to distinguish, not too long, and no footnotes. He also discusses his evolution in his view of en banc opinions – voting for them early on but later in his tenure deciding that they usually made the law worse. He states his view that the U.S. Supreme Court functions best when it moves at an evolutionary pace and does not make fundamental changes to the legal or political topography. Judge Mikva talks about the efficiency improvements he made as Chief Judge, and his disdain for “computer research,” that is Lexis or Westlaw. His view is that such research is “disastrous” – resulting in too many citations, too many authorities, and no self-discipline by the judge or brief writer. One can only imagine what he would think today of AI!

After 15 years on the bench and at the end of his tenure as Chief Judge, Judge Mikva received a call from his longtime friend, Lloyd Cutler, about whether he would consider leaving the bench and serving as White House Counsel for President Clinton. It was an opportune offer, especially since Judge Mikva was not sure how he would adapt to being just a circuit judge after having served as Chief Judge. He worked with a “superb group of lawyers” and found President Clinton’s energy amazing. He served in that job for about a year. When he left, he told his successor, Charles Ruff, that Ruff could concentrate on judicial appointments and legislation since Whitewater and Paula Jones were in the rear-view mirror. In later years, Judge Mikva and Ruff laughed about that many times. Judge Mikva did not anticipate that he was leaving the job just before the Monica Lewinsky scandal and President Clinton’s impeachment, and his trial and acquittal in the Senate.

This oral history is a fascinating inside look into a significant 20th Century figure on the D.C. Circuit, with the added bonus of insights into a legislative and executive branch career.