Slow to Judge
The Closely Analyzed Life of John Nixon
By Richard Urban
July 14, 1997: Patrick Steele, casually dressed in tan slacks and a dark green shirt, sits alone at the plaintiff's table in Room 873 of the Estes Kefauver Federal Building. Lined up behind the defense table to his left, Steele's opposition sits ready and waiting. Three lawyers, all of them in suits and ties, are chatting calmly. Representing the City of Franklin, Williamson County, and the League of Cities, they are prepared to argue that, under the U.S. Constitution, the City of Franklin has a right to display in its town square a monument to fallen Confederate soldiers, to display Civil War memorabilia in its city hall, and to allow police officers to wear a Stars and Bars patch on their uniforms.
The trial does not involve life and death. But Steele is clearly nervous. As he shuffles the stacks of papers on the table before him, his right leg bounces up and down.
Finally, a door opens and "All rise" echoes through the large wood-paneled courtroom. U.S. District Court Judge John T. Nixon emerges, his black robes contrasting with his snowy hair and beard.
The lawyers defend the monument. They talk about the historical significance of the memorabilia. They explain that the patch is only worn on older uniforms, which are being phased out. They cite case law and rattle off various amendments to the Constitution. Occasionally, Nixon interrupts them for a clarification.
When it is the plaintiff's turn to speak, Steele is far less eloquent. Nixon patiently allows him to ramble on about why the symbols of the Confederacy are offensive to him and his fellow African-Americans. The hearing lasts less than a half-hour. In his final remarks, Nixon refers to "The Passing of the Patrician South,"
Reid Buckley's article in the April 21 issue of the conservative journal National Review. Specifically, Nixon quotes Buckley on the subject of some South Carolinians' "diehard" insistence that they have the right to fly the Confederate battle flag: "The dispute--it seems to me--is settled as simply as this. If I put up a sign that my neighbor finds offensive, common courtesy requires that I oblige those sensibilities."
The attorneys return to Franklin, scratching their heads.
The incident says a lot about John Trice Nixon, the embattled 64-year-old district court judge. He is, by any definition, a son of the South, the old South of a time long past, a time when the soil provided livelihoods, when honor had meaning and valor was something to be respected, even in defeat.
Steele vs. City of Franklin is just one of several thousand cases--2,355 since 1990--that Nixon has handled since President Jimmy Carter appointed him to the federal bench in 1980. Yet, as far as his critics are concerned, his 17-year judicial career boils down to five cases heard by Nixon during the past three years. In each of those cases, he overturned a death sentence.
With calls for his impeachment arising from small Tennessee towns, from the state General Assembly, even from Washington, D.C., it is hard to believe that this retiring, cherub-faced, 5-foot, 9-and-a-half-inch man can possibly be a two-headed, flaming-liberal monster. Yet that is how he is portrayed by proponents of the death penalty, and that is the image dutifully reported by much of the mainstream press.
Nixon is wary of giving interviews. But in two days of conversations recently, he came across as a gentle man, an educated man who takes seriously the responsibility of being a federal judge. His life story is dramatic: His father was part of the Agrarian literary movement, and their family was touched by Red-baiting during the 1950s. During the civil rights movement of the 1960s, Nixon found himself in his father's native Alabama, working as a civil rights lawyer for the feds. Now, in news reports and television broadcasts, his rulings from the federal bench have made him a lightning rod for the emotional attacks of people whose lives have been scarred by murder.
All five of Nixon's most controversial cases are still pending at various stages in the legal system. Thus, he is prohibited from discussing the specifics of any of the cases. He did not, however, shy away from a general discussion of the controversy that surrounds him. It is a controversy that is virtually inescapable for anyone aware of events in the local or national news.
Photo by Elizabeth Gadbois
Newsweek noted that juries are reluctant to impose the death penalty, pointing out that, of the 15,000 persons charged with murder every year, only 300 convicted killers actually get the death penalty. Newsweek also noted that only 392 executions have been carried out during the 20 years since the U.S. Supreme Court reinstated the death penalty. Nationwide, more than 3,000 people sit on death rows. There are 94 death-row inmates in Tennessee, where no one has been executed since 1960.
Nixon discusses the death penalty in abstract terms: "I think the American people want the death penalty in the arsenal in the war against crime," he says, "just as we wanted nuclear bombs in our arsenal during the Cold War. But I think there's a reluctance to use the death penalty. When you poll people, I think people across the country...really have that ambivalence. I understand it. I don't think it's inconsistent--believing in the death penalty and at the same time being reluctant to impose it."
Nixon's critics say he is more than reluctant to impose the death penalty. Nevertheless, his ruling in the 1996 hearing for convicted murderer Robert Glen Coe suggests otherwise. Quoting from the case of Gregg v. Georgia, 1976, Nixon noted that "a state may inflict the death penalty without violating the Eighth Amendment, so long as the class of crimes for which the death penalty may be imposed is narrow, the sentencer's discretion is limited, and the punishment is not excessive. A punishment is not excessive if it involves no unnecessary and wanton infliction of pain and is not grossly out of proportion to the severity of the crime." He went on to say that the state Supreme Court was right in upholding Coe's death sentence and concluded, "The Court finds that the sentence imposed on [Coe] is not disproportionate." In other words, Nixon has said that Tennessee's death-sentencing law is constitutional. At least in Coe's case, it had been properly imposed and upheld at the state level.
As far as Nixon's critics are concerned, he had no choice but to conclude the death penalty was constitutional as applied in Tennessee, since the U.S. Supreme Court had upheld it. Faced with that cold, hard fact, they say, he has simply found other ways to get around imposing the ultimate penalty. For example, they continue to point out that in each of Nixon's five death-penalty cases, he has cited improper jury instructions as at least one reason for overturning the lower court's decision. (One of the cases has been upheld at the appellate level, while three are awaiting a decision from the Sixth Circuit Court of Appeals. Another will be argued at the Sixth Circuit in the fall.)
For his own part, Nixon argues that, when Tennessee's death-penalty law was new, he too might well have given improper instructions to a jury. Meticulous to a fault, he seems intent on following the rules scrupulously since, once the switch has been pulled or the lethal injection has taken place, there is no turning back. In each of his five death-penalty cases, he has found factors that have caused him to have serious doubts.
All five cases, some of the first under Tennessee's 1978 death-penalty law, originally went to trial between 1978 and 1981. Since then, volumes of case law have established precedents for what trial judges and prosecutors can and cannot tell juries in capital cases.
Nixon knows firsthand the difficulty of trying such cases under the rewritten death-penalty law. In 1979, as a Davidson County general sessions judge, he was assigned a criminal case in which the state intended to seek the death penalty for a man accused of persuading one of his children to throw lye in his wife's face. As the deadly chemical hit the woman, she opened her mouth, ingesting it. The lye destroyed her esophagus and stomach over a couple of days.
However, just before the case went to trial, the state decided not to ask for the death penalty. "In looking back at that case--the law being as new as it was--I think that my jury instructions would have been constitutionally defective," Nixon says. "Looking at it, I can see that there are some instructions that I would have given that now have been struck down by some federal and some state courts. There was not much case law to rely on."
Nixon has also been criticized for the length of time he takes to decide death-penalty cases assigned to him. (Federal judges are assigned cases randomly.) In one case, the Sixth Circuit ordered him to expedite a case that had been in his court for eight years.
However, federal courts are usually reluctant to move a case until all state appeals have been exhausted, a process that in some of Nixon's death-penalty cases spanned eight to 10 years as the cases their way through the state court system as many as four times. Each of those journeys through the state system took one to three years. In each of the five death-penalty cases, the state appeals process was unresolved when federal petitions were filed.
Photo by Elizabeth Gadbois
The death-penalty controversy now looms menacingly over Nixon's future. But he comes from a family that, since before the turn of the century, has had ample experience with living a life in the eye of the storm.
Nixon proudly traces his roots to the antebellum South, and it is clear he has inherited a Southerner's story-telling gifts, a tradition handed down from father to son--and in Nixon's case from mother to son as well. His maternal great-grandfather, John Trice, was killed by a slave in West Tennessee. Within three days, the slave was captured, tried, convicted, and hanged on the same spot where the killing took place. A copy of the handwritten indictment hangs on a wall in Nixon's courthouse office. His ancestors fought for the Confederacy during the Civil War and played prominent roles in Reconstruction.
His maternal grandfather, another John Trice, was born and raised in the same West Tennessee county where Nixon's parents are now buried. It is also the home county of U.S. Rep. Ed Bryant, who now serves on the congressional committee that will decide whether Nixon should be impeached.
Around the turn of the century, Nixon's grandfather Trice ran the state penitentiary. Eighty years later, John Nixon would declare conditions there unsuitable, leading the state to transfer death-row inmates to the new Riverbend facility.
Nixon's paternal grandfather was a land-owner in a hilly section of northern Alabama, near Anniston. The farm is still in the Nixon family, but it long ago abandoned tenant farming and cotton for timber. His father, Herman Clarence Nixon, a prolific author, was a professor at Tulane University in the 1920s and '30s. During that time, H.C. Nixon became associated with Vanderbilt's Agrarians. He was one of 12 writers, including Donald Davidson, F.L. Owsley, and Robert Penn Warren, whose collection of essays, I'll Take My Stand, was published in 1930 and laid out the case for a major reevaluation of Southern history. The book of essays changed the face of Southern liberalism. In 1938, in his book Forty Acres and Steel Mules, Nixon went on to advocate "social and economic cooperation among small farmers" in hopes of maintaining "something of the organic flavor" of the community. Three years later, he published Possum Trot, in which he celebrated the rural lifestyle of his Alabama birthplace, promoting the "art of living" as opposed to the "art of making a living," and cautioned against the increasing industrialization of the rural South. Nixon went on to become a popular, if non-tenured, associate professor at Vanderbilt in the '40s and the '50s.
H.C. Nixon was a pragmatist who defined Southern liberalism as "a belief in the democratic process, a desire to eliminate outmoded traditions, a tolerant attitude toward those of contrary views, and a recognition of the worth of the individual, whatever his economic stature." As a result he also endured his share of controversy.
He disavowed segregation as early as the '30s. His contentious resignation from Tulane came in 1939, and accusations of Communist associations in the late '40s and early '50s swirled around the family as John Nixon was growing up.
Nixon describes his mother, Anne Trice Nixon, who died last year at age 91, as a "free spirit," a liberated woman long before women's liberation became popular. She was an adventurous woman who traveled widely, taking John and his teenage brother, Nicholas, to Europe in 1949, even as the Continent struggled to recover from a world war. It is clear that some of John Nixon's philosophical approach to life came from his "hillbilly realist" father, who encouraged his sons' intellectual pursuits. Meanwhile, it was his mother who went hunting for out-of-print books and Civil War memorabilia so that she could set them aside for her children's Christmas presents.
"One of the interesting experiences I had growing up was being interested in the War Between the States and identifying with the Confederacy as a Southerner, and at the same time growing up in a family that did not believe in segregation or discrimination against black people," Nixon explains. "My father never suggested to me how to deal with that contradiction; he just let me live with it and deal with it on my own.
"I suppose maybe my daughters would say I've never resolved that. But I suppose what I would say is that, looking at values I've inherited from my father, love of place and the people who live in that place is a great civilizing thing." At the same time, Nixon notes, "Your attachment to people and place can put you on the wrong side of a moral issue."
He points to "good men in the South who ended up on the wrong side of a moral issue. And many of them did so because of their attachment to a place where their roots were sunk and the people they loved."
Nixon came of age during the '40s and '50s, when Vanderbilt was his playground. After graduating from Peabody Demonstration School, now University School of Nashville, he attended Vanderbilt for a year before transferring to Harvard, where he was influenced by the New Criticism, an analytical approach to literature and art that came into fashion after World War II. He recalls Harvard bull sessions "when we took ourselves much too seriously, and the greatest put-down would be, `You're making a value judgment.' You analyzed the story, the facts. You look at the literature, look at the poem, look at the painting. You don't need to know who did it; it should stand on its own merit."
After his 1955 Harvard graduation, Nixon returned to Vanderbilt for his law degree, interrupting his studies in 1958 for six months of Army training at Fort Jackson, S.C. In law school in those days, Nixon explains, the analytical approach persisted. "You didn't look at the good or the bad," he says. "You looked at the process."
All the while, Nixon's social sphere was widening. "When I was at Harvard, some of my fellow students were African-American," he says. "Until then, I'd never really been on an equal basis with African-Americans, even though my family opposed segregation. Usually, my experiences with African-Americans were in serving roles."
Then, when Nixon went into the Army, his drill sergeant was an African-American, a soldier who had been in the service since the 1930s when the military was segregated. Nixon was concerned about how he would deal with an African-American in "a superior position." But the drill sergeant turned out to be an outstanding soldier. "I discovered I didn't have a problem at all with an African-American in a superior position," Nixon says. He was impressed with the success of integration in the Army and began to feel confident that it could work in other places too.
After finishing law school in 1960, Nixon married a graduate student, Betty Chiles. (They would divorce in 1985; she would later run for mayor of Nashville.) Then he returned to his family's Alabama roots, setting up a private legal practice in Anniston, an industrial satellite of Birmingham. "It was as close to Possum Trot as I could get," he explains. Nixon recalls the Alabama of that time as a "segregated society. Doctors had separate offices for blacks and whites. Some office buildings in Birmingham had separate elevators. Blacks and whites had few dealings with each other."
Two years later, Nixon became Anniston's first salaried city attorney. One of his first acts was to persuade the mayor and the finance commissioner to establish a biracial commission to improve communication. It was an act that caught the attention of then-U.S. Attorney General Robert F. Kennedy and led to an invitation to Washington in May 1963 to discuss race relations.
That same year, the young lawyer was visiting family in Nashville when a Freedom Rider's bus was set afire just outside Anniston. A year later, in 1964, he prosecuted a local Ku Klux Klan leader for shooting into a black church, and he applied for a job with the U.S. Justice Department's Civil Rights Division.
By December 1964, he was a trial lawyer in the Civil Rights Division. Robert Kennedy had moved on to the U.S. Senate, and Burke Marshall, who went on to teach at Yale Law School, headed the division. Marshall was succeeded by John Doar, who later helped draw up the articles of impeachment against Richard Nixon. Among the lawyers assisting Doar was Hillary Rodham.
In Nixon's first six months as a federal lawyer, he spent 125 days in the Selma area, monitoring voting-rights marches that were often led by Martin Luther King Jr. He also encountered the likes of Andrew Young and American Nazi Party leader George Lincoln Rockwell.
But Nixon also happened to run into the same Klan leader he had prosecuted back during his days as Anniston's city attorney. Nixon had been sent to Selma because of reports there would be an assassination attempt on King. When Nixon saw the Klan leader, he informed the FBI, and King's protest march went undisturbed.
Nixon's political leanings had never been any secret. Back during the 1960 presidential election, he had organized a "Nixon for Kennedy" Club. Nevertheless, even after the other Nixon was elected president in 1968, John Nixon stayed on at the Justice Department for another year.
Then politics began to taint his vision. Nixon was involved in putting together a desegregation plan for 30 school districts in Mississippi. Around the time that the plan was to be submitted to a federal court, President Nixon was trying to get an anti-ballistic missile treaty through the Senate. Just before a key vote on the treaty, Sen. Foreign Relations Committee Chairman John Stennis informed the president he would be unable to guide the vote through the Senate. Instead, Stennis explained, he had to be in Mississippi for a hearing on the desegregation plan. President Nixon blinked, and the lawyers handling the case for the government were recalled to Washington before the case could be presented.
"They got the rug pulled out from under them, and I decided I could not stay [with the Justice Department]," Nixon recalls. "The protocol was for the resignation letter to go to the deputy attorney general, who was [Richard] Kleindienst. Then the attorney leaving would have an exit interview with Kleindienst. So I wrote my letter stating my reasons. I did not get an exit interview."
Kleindienst, Nixon's attorney general during the first, discredited investigation into Watergate, was forced out of office in 1973. In 1974 Kleindienst pleaded guilty to failing to provide complete information to a Senate committee in an unrelated case involving ITT. He received a one-month suspended sentence and was fined $100 for the misdemeanor. "Needless to say, I got a little pleasure out of seeing Mr. Kleindienst in the dark a few years later," Nixon says.
Generally, however, Nixon remembers the late '60s with a nostalgic fondness, saying it was a time that provided a chance for "the great-grandson of Confederate soldiers to resolve some of his conflicts."
Nixon and his family returned to Nashville in early 1970, and in 1971, Gov. Winfield Dunn gave him a job in the state comptroller's office, where he helped draft legislation and learned firsthand how bills were amended and passed. "There's a famous comment by Bismarck that anyone who loves sausage and loves the law should not watch either one of them being made," Nixon says. "I was able to see how bills got amended and how an amendment changes the meaning of the law." The experience proved valuable. "When I'm called upon to interpret legislation now, I can look at it and see there's an amendment stuck in here," Nixon explains.
In 1977 Gov. Ray Blanton, for whom Betty Nixon worked during Blanton's 1974 campaign against Lamar Alexander and for whom she served as a press aide, appointed Nixon to the Circuit Court bench. Though Blanton did not particularly trust lawyers, Nixon says he took judicial appointments seriously. When Nixon was appointed, he says, Blanton "told me, `I'll never ask you for anything. Rest assured.' And he never did.
"The only time he ever asked me for anything was after I went on the federal bench. He was in the penitentiary, and his mother was dying. He called me from the penitentiary and asked me if there was anything I could do to get him a furlough to see his mother. I called him back and told him, `I can't interfere with it, I have no authority with the Bureau of Prisons.' He understood."
For a little more than a year on the Circuit Court, Nixon handled mostly civil cases, but he took some criminal cases as well. In 1978 he stood for election to the judge's seat to which he had been appointed. Harry Lester defeated him by 1,400 of 42,000 votes cast, despite the fact that Nixon had endorsements of both newspapers, organized labor, and black organizations. "Still I managed to get defeated, which shows you what a good politician I am," Nixon says.
Blanton then appointed Nixon to General Sessions Court, a step down from Circuit Court. "I was on a judicial roller coaster," says Nixon. (General Sessions judges are now appointed by Metro Council.)
Just one year later, when a vacancy came up on the U.S. District Court, then-U.S. Sen. Jim Sasser appointed a screening committee for possible nominees. The committee was headed by John Wade, dean emeritus of Vanderbilt Law School, and Nixon was one of three jurists whose names were submitted to Sasser. The others were Harris Gilbert, who still practices law in Nashville, and Herman Kilcrease, now with the U.S. attorney's office. "I did not have the best politics of anybody on the committee," Nixon says. "I knew Sasser from law school, and we had contact within Democratic Party politics. But I didn't really have the politics where I could call up Sasser and say, `I'd really like to have this judgeship,' and he'd say, `Sure.' "
Nixon surmises that, before Sasser decided whom to nominate, he contacted other opinion leaders in Nashville. He supposes that one of the power brokers on Sasser's call list was John Seigenthaler, then editor and publisher of The Tennessean. Nixon had met Seigenthaler while Nixon was a Vanderbilt law student. They had been introduced by Nixon's Harvard classmate David Halberstam, who was then a Tennessean reporter.
In 1980 Nixon appeared for confirmation hearings before the Senate Judiciary Committee and was sworn in the same day. U.S. Sen. Howell Heflin, who presided, advised him, "Always remember you have been appointed, not anointed."
Lately, Nixon, now chief judge of the Middle District of Tennessee, has been quoted as saying, "A federal judge's job is full of stresses, but it's the best job in the world." According to Nixon, it's a great job because of the diversity of cases in the Middle District of Tennessee. "Nashville is the state capital, so we get cases involving the constitutionality of state legislation. This is a big medical center, and...we get medical malpractice cases. We are a tremendous interstate center. I think only one city in America has more interstate connections than Nashville does, and we get accidents coming off the interstate, usually an interstate truck and a local car.
"At one time, we were the Wall Street of the South. Of course, Atlanta has outstripped us now, but we still get securities cases. We are obviously a big university center, and we get cases involving alleged discrimination in the granting of tenure. I had one case come out of Tennessee State involving reverse discrimination.
"We're Music City U.S.A., and we get copyright cases. I've had a few patent cases. I've had several admiralty cases coming off the Cumberland River.
"We get racial discrimination cases. Nashville has had a strong African-American middle class for a long, long time. And I think that's because of the universities, Fisk and Meharry and Tennessee State."
Given his perspective from the bench, Nixon says, he's reminded of "a little book by Marquis James," a gift to him from his father: "[James] wrote that he could walk down behind the alley in town, and he could see the blacksmith shoeing a horse, he could see the veterinarian treating the horse, he could see the newspaperman setting the print, he could see the gunsmith replacing the stock on a rifle." In short, he had the inside story on everything that was going on in town. "I feel that I have the same view of Nashville through being a United States district judge that he had walking down behind the main street of his little Oklahoma town," Nixon says.
In regard to the stresses of his job, Nixon says, "You have to make decisions and you have to sentence people. Sometimes that is easy, and sometimes it's hard. Before the [new sentencing guidelines were established], I felt that the first offense for a nonviolent crime was an easy one. You put the person on probation. The man who's been convicted of robbing the bank for the fourth time, that's easy. You give him the maximum. It's the ones in between that are difficult.
"It's not pleasant sending someone off to the penitentiary for a long period of time. Sometimes it does not bother me at all. I look at this person and say, `This is a dangerous human being who's had his second chance and is going to be a dangerous human being the rest of his life.' I feel no stress at all, other than the stress you might get from looking a dangerous human being in the eye while you're passing sentence on him."
But there are stresses that come from the plaintiff's table too: "When there is a case coming off the interstate and the plaintiff takes the stand and starts going through his injuries or her injuries...and it's not unusual for that person to cry when they talk about what they were like after the accident.
"I can certainly see the point of view of people who have lost loved ones and are upset about it. And watching the coverage of the Oklahoma City bombing--I have a very difficult time keeping the television set on [watching] these people who are victims, not in the sense that they were injured, but victims in the sense that their family members were people who were killed or injured. It's very difficult. You feel as if you're intruding on someone's grief when you're watching that.
"When I see the parents of somebody sitting in the back of the courtroom when I'm sentencing their child--these are parents who have got their child through college, and then the child decided to make some quick money in the drug business. And to see that heartbreak is difficult. They're the innocent victims of what [their children] have done."
Nixon is convinced that the public, including some lawyers, has difficulty understanding the legal process, and that lack of understanding often leads to frustration. "I think the most difficult thing for the public to understand is the judicial process in criminal cases. Often, they do not understand the lawyer's role. They will look at a lawyer and say, `How can you represent someone who's done something like that?' Or, assuming the person's done it or it's after the trial and the person's been convicted, the defense lawyer is asked, `How can you defend that person?'
"Well, the system does not work unless that person has an able attorney representing them in a criminal case. If I look at that from my own personal point of view, if I'm going to send somebody to prison for 50 years, or for one year or for life, I want to know that person has a good lawyer. I don't want that person to come up here and say, `I couldn't get anyone to represent me,' or `The only person I could get is this person who's never been in federal court before.'
"I want that person to have good legal counsel before I do that, because then I can rest easy when I send him off for 50 years."
Nixon also argues that the availability of strong defense lawyers ensures that prosecutors and law-enforcement officers will prepare their cases well and follow the rules, for fear that shoddy investigative work or other weaknesses will come out in court.
"I suppose, in criminal cases, we get 90 percent guilty pleas that are well-prepared cases. [We have] a good U.S. attorney's office, and the public defender's office is good. And when the public defender comes before me to plead somebody guilty, I know that public defender has investigated the case and negotiated and has gotten the best deal."
Behind the bench, it's a lonely life, especially in the midst of a controversy such as the one that surrounds Nixon now. He copes with his current crisis by remembering that not everyone out there considers him to be a demon.
"The only problem I have now--and it's a good problem--people will come up to me...and tell me, `I just want you to know I'm behind you,' " Nixon says. "It's very touching, but it also makes me aware that I've lost a lot of privacy. If I go out to eat or have a drink after work these days, almost inevitably, someone will come up and tell me, `You've got more supporters than you realize.'
"One old country music songwriter came up to me, and he said, `You know, I admire a man who wears his own kind of hat.' And he said, `Don't you let them take your hat, because the next thing they'll do is take your horse.' "
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