Friends Recall a Giant of Civil Rights Law

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John A. Payton during a televised appearance (The Daily Show)
John A. Payton during a televised appearance (The Daily Show)

On March 22 the world lost one of its most revered and effective legal warriors in the battle for civil rights: John A. Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund. President Barack Obama said in a statement, "The legal community has lost a legend, and while we mourn John's passing, we will never forget his courage and fierce opposition to discrimination in all its forms." We asked his friends and colleagues to share their sentiments, as well.

Always a Step Ahead

I was surprised to learn that my mother, who was 79 at the time, had listened to the radio broadcast of the Supreme Court arguments in the Michigan affirmative action cases Gratz v. Bollinger and Grutter v. Bollinger. She said she was not very impressed with most of the arguments, but there was one "young man," however, with whom she was very impressed. "Let me check my notes," she said. "John Payton, that's his name, he was very impressive." I laughed and said proudly, "Yes, I know John. He is a friend of mine."

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John Payton was my mentor and my friend. How lucky for me. Like so many, I was devastated when I learned that he had died. I met John in 1982, after I applied for a clerkship with Judge Cecil Poole, for whom he had clerked. I interviewed first with John, who was clearly brilliant, funny and intimidating. John recommended me to the judge, who hired me.

Later, despite my hesitance because of my desire to become a civil rights lawyer, John encouraged me to join Wilmer, Cutler & Pickering, an elite law firm. John told me of his civil rights work at Wilmer, including representing the NAACP in the Claiborne Hardware Supreme Court case, and convinced me that I could do good work from inside such an institution. He was right.

At Wilmer, under John's leadership and that of Jim Coleman, the first two African-American partners at the firm, I was able to work on significant civil rights matters. In the first case I worked on with John, I also worked with Gay McDougall, who headed the Southern Africa Project at the Lawyers' Committee for Civil Rights and who became his wife and life partner. It was 1985. The case involved a black American dancer, Barry Martin, who was injured in a car accident in South Africa. The ambulance took the white driver of the car to the hospital but left Martin. A bystander took Martin to the hospital, where he was denied treatment because of his race. Tragically, the young dancer became quadriplegic. We sued the South African government. Heady stuff. We lost, but did not lose the point that the courts could be used in the fight against apartheid. Subsequently, John and Jim coordinated legal representation for protesters in the Free South Africa Movement. I signed up immediately.

John and Gay were leaders at home and abroad in the fight for civil and human rights: bold, smart, creative lawyers committed to the cause. He obviously loved and respected her, and she him. Together, they mentored and inspired many young lawyers.

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After I left Wilmer to join the NAACP Legal Defense Fund, I still had opportunities to work with John on civil rights cases. We did not always agree on the approach. Of course, for any intellectual argument with John, one had better be well-prepared. He always had some profound legal point that would capture you and make you think differently about the issue, followed immediately by some observation that he found hilarious. He was deeply committed to justice and equality, compassionate, and always a step ahead. He made a difference. We will miss him.

Janell Byrd-Chichester
Partner, Mehri & Skalet, PLLC; former assistant counsel for the NAACP Legal Defense & Educational Fund, Inc.

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 The Thurgood of Our Generation

I met John Payton in the fall of 1974 at Harvard Law School. John was universally viewed by his classmates, both black and white, as a brilliant student with a maturity and sense of purpose about how the law could be used to advance issues of social justice. We served together on the Harvard Civil Rights-Civil Liberties Law Journal, and I was proud to work with him on the journal and confident that he would go on to make his mark in the area of civil rights law — and he did.

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John became the greatest civil rights lawyer of our generation. John was the go-to lawyer in America for defending attacks on affirmative action efforts. When challenges were made to the constitutionality of racial set-asides to assist minority businesses, the black business community and the Congressional Black Caucus turned to John as their lawyer. When the University of Michigan was challenged on the constitutionally of its race-conscious admissions procedures, it selected John as its lawyer. In 2008, when the NAACP Legal Defense Fund needed a new director-counsel to replace the great Ted Shaw, LDF turned to John.

As the co-chair of the LDF board, I urged John to become the director-counsel of LDF. I recognized that the request would require John to uproot his life, that he would have to leave his beloved law firm WilmerHale and relocate to New York. Consistent with his lifelong commitment to civil rights, John agreed to leave his law firm and become the head of LDF. His wonderful and equally brilliant and dedicated wife, Gay, endorsed John's move to LDF. Both John and Gay stepped up to the plate when LDF called.

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In my capacity as the co-chair of the LDF board, I had the honor of working with John during his tenure at LDF. John was a wonderful, powerful and brilliant leader. John loved being the leader of LDF — it was as if he had trained his entire life to follow in the footsteps of Thurgood Marshall, and John in fact became the Thurgood of our generation. John was loved by LDF's board and the entire staff. I and LDF's board and staff will miss him greatly — we have lost a close friend and our leader.

Ted Wells
Chairman emeritus of the NAACP Legal Defense Fund Board and co-chair of Litigation at Paul, Weiss, Rifkind, Wharton & Garrison

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Never Hesitated to Answer a Challenge

Charles Hamilton Houston once famously said that a lawyer is either a social engineer for justice or a parasite on humanity. More than seven decades after the greatest black lawyer of his generation uttered these fateful words, we mourn the passing of my dear friend John Payton, who best exemplified this generation of black lawyers' efforts to live up to Houston's exacting standards.  

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John was everything that Houston could have wanted in a social engineer. And he did it at a time when, paradoxically, it is arguably more difficult to live by this credo than it was in Houston's time. Needless to say, John never faced the outright bigotry and threat to life and limb that Houston and his student and protégé Thurgood Marshall confronted on a daily basis during their time at the helm of the organization that Payton would go on to so brilliantly lead. Precisely because of Houston and Marshall's success in defeating the monstrous forces of American apartheid, black lawyers like John and me never had to confront these dangers. Instead we have had the opportunity to forge legal careers about which Houston and Marshall could only dream. This opportunity is, of course, exactly what these original social engineers would have wanted for us and is a crucial part of their legacy. But it has also created a danger that we might forget where these opportunities came from — and take our eyes off the work that still needs to be done.

John never lost sight of either part of this dual heritage. In his illustrious career, John took full advantage of every opportunity Houston and Marshall's prior victories afforded him, eventually becoming one of the very first black partners in one of this country's leading corporate law firms. Yet even in this most mainstream setting, John found ways to use his position to promote the cause of racial justice.

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By pushing to open the doors of the still virtually all-white corporate world, while at the same time mobilizing the resources of his firm to provide pro bono support to traditional civil rights organizations in a host of important cases, John put the lie to the common myth that anyone who went to work for a large law firm was a "corporate tool" who had "sold out" his commitment to social justice. And when the call came to serve the cause of justice even more directly, whether in the D.C. government, South Africa or at the LDF, John never hesitated to answer the challenge. 

I have spent much of the last 25 years studying the careers of the generation of black lawyers who came of age in the world that Houston and Marshall's great victory in Brown v. Board of Education made possible. And I have never seen anyone who exemplified that decision's dual legacy of equal opportunity through integration and social justice through law better than John Payton. I have no doubt that Houston, Marshall, Robert Carter and the rest of the original social engineers have already set a place of honor for John at their table. I will miss him dearly at mine.

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David Wilkins
The Lester Kissel Professor of Law and vice dean for Global Initiatives on the Legal Profession at Harvard Law School

He Always Delivered

I have been teary-eyed a lot the past few days. I still cannot really believe that John Payton is no longer with us. It was too soon and too sudden. John was at the height of his intellectual powers and he was doing so much sterling work to make life better for others. "How can he be gone?" I keep asking myself. I really cannot fathom this …

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John was a serious, no-nonsense person who did not suffer fools lightly, and he was wonderfully irreverent in tearing down specious traditions to help make our country a better place in which to live. But he was also lighthearted, witty, warm and erudite. When it was time to get something done, John always delivered. President Obama described John as "a true champion of equality … who helped protect civil rights in the classroom and at the ballot box."

That is an understatement, for John was so much more. He was a brilliant legal scholar and practitioner, an inspiring teacher, a treasured mentor to so many aspiring young attorneys and a loyal and devoted friend to so many of us. All of his friends and colleagues loved and respected him because of his great vision, courage, sterling accomplishments, determination never to be impeded by arbitrary obstacles, grace and goodness. He really was an inspiration.

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Judge Harry T. Edwards
U.S. Court of Appeals for the D.C. Circuit

A Historic Litigation Leader

I first had the pleasure to meet John Payton during the Clinton era. What I most remember about him is his great respect for humanity, his intensity in using the law to achieve justice and his unparalleled love for his wife.

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What the public will remember of him is that he was a superb litigator who successfully devised a strategy in two of the most difficult affirmative action cases of our time, Gratz v. Bollinger and Grutter v. Bollinger, the latter in which the Supreme Court upheld race-conscious admissions in higher education in 2003. Now that the Supreme Court is considering another affirmative action challenge so ominously soon after the Bollinger cases in Fisher v. University of Texas, John's legal guidance will be sorely missed.

John volunteered his time to argue many civil rights cases while he was a partner at the Washington, D.C., law firm WilmerHale (previously known as Wilmer, Cutler & Pickering). He left a comfortable perch as a partner there to take on the biggest, most difficult and rewarding challenge of his career — becoming the president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc., the historic litigation leader in the civil rights movement. He brightened when he talked about the chance to give back and use his prodigious legal skills full time for the sake of equal justice under the law.

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John was also an important adviser to the White House and a close and effective adviser and friend to Attorney General Eric Holder. He was a great collaborator of the ACLU and helped educate the wider civil rights and civil liberties community about the lurking threats to hard-fought civil rights gains.

But the measure of a man is not just his résumé. John was a bracing critic when he didn't agree with the characterization of a civil rights challenge. But beneath his very serious public demeanor and sometimes stern tone, he was a man who could roar with laughter at a funny joke and who could mischievously tease his friends.

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On the many times I saw him with his brilliant, world-renowned human rights activist wife, Gay McDougall, I saw a twinkle in his light eyes of pride and admiration for his dynamic spouse. Over the years they hosted numerous parties on behalf of varying social causes, inviting foreign and domestic dignitaries to their elegant D.C. home so that they could meet with American nonprofit leaders. Gay was instrumental to John's success at NAACP LDF, lifting up his leadership in ways large and small.

Laura W. Murphy
Director, ACLU Washington Legislative Office

In the last few days, many written tributes have referred to John Payton as a civil rights lawyer. He would have fully embraced that description, but in truth he was much more unique than that. In 1972, Joseph C. Goulden wrote a book about powerful Washington lawyers called The Super-Lawyers: The Small and Powerful World of the Great Washington Law Firms. The book, about men such as Clark Clifford, Abe Fortas and Lloyd Cutler, cartoonishly and unflatteringly describes them as lawyers who used their considerable legal skills and enormous influence in pursuit of their clients' private interests, often at the expense of the public interest.

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John was also a Washington super-lawyer in the vein of the men about whom Goulden wrote. What made him unique, however, was that he used his skills and influence to pursue the public interest and not just the private interests of the major corporate clients he also represented. In all other respects as a lawyer, he was a direct descendent of John Pickering and Cutler, super-lawyers who were his mentors at Wilmer, Cutler & Pickering, the firm they founded (now known as WilmerHale).

I met John the first time by telephone. He and I were supposed to start as Wilmer, Cutler & Pickering associates in the fall of 1978. John started on time, but I delayed my start to assist with a congressional investigation. One afternoon I received a call from a man who introduced himself as John Payton. He said he had just started as an associate at Wilmer and thought I should know that a former associate who was African American had made a discrimination allegation against the firm. He wanted me to know in case it might affect my decision to join the firm. He said he was staying at the firm and he hoped I would join him. His tone was matter-of-fact; it obviously never occurred to him that making such a phone call might not be the right thing to do.

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From that day in 1978 until his death, John and I were friends, and for a chunk of that time law partners in the special way that John Pickering and Lloyd Cutler had been friends and partners. We became the first two African-American partners at Wilmer …

John was an important partner at Wilmer; he personified all that was good about the firm. His presence helped the firm to recruit many of its most outstanding young associates, whom he then mentored when they arrived at the firm. He was a role model, a confident, inspirational and wise adviser for lawyers at all level of the firm, especially those who were African American. And he also cared about the staff at the firm; he was always their champion and they knew it.

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James E. Coleman Jr.
John S. Bradway Professor of the Practice of Law
Duke University School of Law

Editor's note: Janell Byrd-Chichester's remembrance has been updated to reflect John Payton's role in the Supreme Court case NAACP v. Claiborne Hardware.

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