Not with our tears.

• Author: Fiss, Owen
• Position: Yale Law School professor Burke Marshall - Testimonial

He loved to tease me. He knew my heart was pure, but he was amused by the excesses of reason to which I was often drawn. Burke aspired to a workable government. Quixote-like, I wanted something more perfect--a heaven on earth. Burke understood the foolishness of this dream but always tempered his reserve with kindness and made light of our differences.

In the summer of 1963, between my first and second years of law school, I worked at the firm of Covington & Burling in Washington. The work was dreadful. I spent my days scanning invoices for "corn syrup unmixed" to see if I could detect a violation of the Robinson-Patman Act. It was very hard for me to keep going, but soon I noticed that all the earlier memoranda in the file had been initialed by Burke, who, having left the firm in 1960 to become the Assistant Attorney General in charge of the Civil Rights Division, was then at the center of the public life of the nation. So I managed to convince myself to persist, because corn syrup unmixed and all that it implied seemed indispensable training for public lawyers.

The March on Washington took place in August 1963. I had returned to Harvard shortly before to complete my legal studies, but soon, as the civil rights cause took on greater urgency, I found myself uneasy with the career plans I had formulated. History was being made and I wanted to be a part of it. In early November 1963--after the bombing of the Sixteenth Street Baptist Church in Birmingham, and only weeks before the assassination of President Kennedy--I flew from Boston to Washington with the wild idea of presenting myself to Burke Marshall for a job. I went straight to Burke's office, and asked the secretary guarding his office if he was available. She asked who I was, I explained, and then she said, looking down to the floor to avoid the obvious awkwardness of the situation, that he was not in at the moment. She referred me to his Second Assistant, St. John Barrett, who was kind enough to give me a job application. I filled it out, and went home.

For the next three years, I marked time. I completed my last year at Harvard, clerked, and then in September 1966 began work in earnest at the Civil Rights Division. By that time, however, Burke had stepped down as Assistant Attorney General. He was succeeded by his First Assistant, John Doar, an extraordinary figure in his own right. John needed no help from anyone, yet he often turned to Burke for advice. Burke was then working for IBM in New York, and John conferred with him by telephone, often in the evening, always taking notes in a black notebook. Sometimes, as with the formulation of the government's position in Walker v. City of Birmingham, I would sit in John's office and listen to one side of the conversation. That case arose from Dr. King's historic campaign in Birmingham during Easter 1963. According to John, Burke thought that the government should stress the caste-like character of the system that Dr. King was protesting. My job, maybe my life's mission, was to elaborate and make more concrete Burke's insight--a task all the more difficult because I had never met the man.

In late 1973, the House Committee on the...