Judge Damon Keith

Community members recall Judge Damon Keith’s ties to the Jewish community and the legacy he left behind.

 

The Pursuit of Justice

By Carl Levin

Damon Keith left our community and our nation a better, fairer place for all our people, and future generations will be the beneficiaries of his relentless pursuit of justice.

My memories of Damon from 55 years ago remain vivid to this day. His vision was so clear and compelling when he became co-chairman of the Michigan Civil Rights Commission at its inception in 1964, and I became the Commission’s first general counsel.

The Commission took on issues that were not yet established, such as discriminatory practices in housing and by city officials. As a lawyer, I was advising caution, but Damon was urging “full speed ahead.” Invariably, his instincts were right because they were grounded in fundamental values.

His opinions as a judge will stand the test of time because he saw the law as an instrument of justice. Damon Keith’s character provided timeless reminders of how following a moral path in life can bring fulfillment and joy to those who strive for it and lasting benefit for the community in which one is a part.

Judge Keith had a special bond with our Jewish community because he understood that expressions of hate and hateful actions against people based on their being part of a group are contagious and will unleash violence in response. He understood that silence in the face of hate speech was aiding and abetting the perpetuation of that evil. Remembering Damon will be a reminder of that tragic truth.

Carl Levin is a former Michigan senator.

Moving the Constitution Forward

By Robert A. Sedler

In my long career as a constitutional law professor and civil rights lawyer, it was my great privilege to have had the opportunity for numerous interactions with Judge Damon J. Keith.

Judge Keith was a pioneering judge who rendered landmark decisions in many constitutional cases, propelling the Constitution forward, so to speak, to bring about racial equality and the protection of individual rights in the American constitutional system.

I had followed some of those landmark decisions before I came to Detroit and Wayne State in 1977. In 1970, as a District Judge in Davis v. School District of City of Pontiac, Judge Keith found that the Pontiac School District had intentionally made a series of decisions about attendance zones and school closures and openings that resulted in racially segregated schools. He ordered the school district to integrate its schools.

In 1971, in United States v. United States District Court, which has come to be known as the “Keith case,” Judge Keith held that there was no “national security” exception to the Fourth Amendment’s warrant requirement, so that the government’s warrantless wiretapping of suspects in a “bombing conspiracy” case was an illegal search under the Fourth Amendment. The Supreme Court unanimously agreed with Judge Keith. No warrant, no wiretapping, “national security” or otherwise. Ever since, the government has always had to get a warrant for any wiretapping in the name of “national security.”

In 1979, I wrote a friend of the court brief for New Detroit Inc. in Baker v. City of Detroit, where a Sixth Circuit panel that included Judge Keith upheld the City of Detroit’s affirmative action plan for the city’s police department. The court found that there had been a long history of racial discrimination against African Americans in the hiring and promotion of police officers and approved an affirmative action that required the hiring and promotion of one African American officer for every white officer until a 50-50 percent ratio had been achieved.

Perhaps Judge Keith’s most famous decision — and that for which he will be long remembered — is Detroit Free Press v. Ashcroft, in 2002, where he wrote an opinion holding that an order of the Attorney General closing deportation hearings in “special interest” cases violated the First Amendment. The opinion included these immortal words: “Democracies die behind closed doors.”

In 1995, I litigated an important First Amendment case before Judge Keith. Most of the players on Central Michigan’s basketball team were African Americans from Detroit. They used a colloquial term frequently used by African American athletes that means an athlete who is “fearless, mentally strong and tough.” Although it’s meaning is clearly different, it sounds like the derogatory “N-word,” particularly when used by whites. When the university found out that the players were using the term, and that the white coach had used it to motivate the players, they invoked the university’s “discriminatory harassment” policy. They prohibited the players from using that term and terminated the coach’s contract. I represented the players and the coach in a First Amendment challenge to the policy and to the coach’s dismissal.

The policy was similar to the University of Michigan’s “discriminatory harassment” policy, which I successfully challenged in 1989 on behalf of the Michigan ACLU in a case before U.S. District Judge Avern Cohn. Judge Keith wrote the opinion for the Sixth Circuit. He agreed with Cohn that the policy on its face was unconstitutionally overbroad and vague, in violation of the First Amendment and enjoined the university from enforcing it. The coach’s claim did not fare so well. Keith ruled that his use of this term to motivate the players was not speech on a matter of public concern and did not involve academic freedom. Although I was disappointed with that part of the opinion, I had to concede that his analysis was persuasive.

I treasure the opportunity that I have had to interact with Judge Damon J. Keith and engage in a remembrance of that opportunity upon his passing.

Robert A. Sedler is Distinguished Professor of Law at Wayne State University.

A Soviet Jewry Activist

By Jeannie Weiner

Natan Sharansky was born Anatoly Borisovich Shcharansky in 1948 in Donetsk, Ukraine. In 1973, after his request for an exit visa was denied from the Soviet government, he became a “refusenik” and an activist on behalf of Soviet Jews seeking to leave Russia and relocate to Israel. Four years later, in 1977, his outspoken activities led to his arrest on trumped up charges of treason and spying for the United States. He spent 13 years in prisons and labor camps, a great deal of that time in solitary confinement. It was in prison that he taught himself Hebrew and played chess, always hopeful that he would someday get to Israel.

As an outspoken advocate for freedom of religion and freedom of speech, his unusual friendship with the Honorable Damon J. Keith was a natural. But how did these two lions of justice meet?

Judge Keith, it seems, visited the Soviet Union prior to Sharansky’s arrest.

The judge was part of a group monitoring the Helsinki Accords, as was Sharansky to the chagrin of the Soviet government. Both Keith and Sharansky were deeply committed to the rights of individuals to pray in any form they wished, to move freely from one country to another and to speak openly.

When Judge Keith met Sharansky, his future looked grim. The judge, always with a broad smile, a twinkle in his eye and an optimistic outlook, told the soon-to-be prisoner that he “liked his hat.” Sharansky was wearing a fur-trimmed winter hat. Natan Sharansky said, “I like yours.” The judge proposed they trade hats and return them when they next met “in freedom.”

Years later in Detroit, after Sharansky’s release in 1986, at the Detroit Free Press office, the hats were “returned.” At that time, Sharansky was an Israeli citizen and Judge Keith arranged to meet him for an exchange that neither of them had thought would occur.

What is not known is that from his early days on the watch committee for the Helsinki Accords, Judge Keith was a Soviet Jewry activist. He spoke to the Jewish community at the Jewish Center in 1981, he wrote letters and never missed an opportunity to stand up for the basic human rights of Soviet Jews.
Judge Damon J. Keith lived what he believed. He leaves more than a gap; he leaves a hole. He will be missed.

Jeannie Weiner is the former chair of the Soviet Jewry Committee of the JCRC.

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