By Ellen F. Harris
Photograph by Wiley Price from the book Lift Every Voice and Sing
The deseg case, as it was called—Liddell v. Board of Education—brought us together, in 1980. Every afternoon I stopped by the federal courthouse to check on that case for what was then KMOX-TV. I’d drop by the chambers of the federal appellate judge who ruled on the case: Theodore McMillian, or, as the reporters called him, “the Judge.”
McMillian had been the first African American on the state bench, the first on the state appellate bench and the first on the 8th U.S. Circuit Court of Appeals. Wherever he went, he transformed the system—ordering that juvenile offenders be separated from adults in prison, crafting legal opinions that would be used in U.S. Supreme Court rulings, allowing people who were single or blind to adopt children.
The Judge was very powerful (listed in Ebony’s 100 Most Influential Black Americans and Who’s Who), but he acted as if his drop-in guest was the important one. He’d take me to his kitchen and offer five flavors of ice cream, four of coffee and three of tea. Once I walked in as his law clerks were singing “Happy Birthday” and saw the Judge presiding over his birthday cake with a big smile, looking like a gleeful 5-year-old.
We began going to lunch, where the Judge would talk about new movies, Jacob Lawrence’s paintings, opera, local history, pet dogs he’d had as a kid and, always, cookery. At the Broadway Oyster Bar, he compared the poorboys to those he ate at his favorite Bourbon Street dive. Every New Year’s Day he cooked black-eyed peas, for luck, and he created his own good fortune for nearly 87 years.
At Washington University’s faculty club, the Judge talked to the busboy with the same enthusiasm he used to greet then-Chancellor William Danforth. People loved the Judge because he showed the same respect to everyone and listened when they spoke as though they knew more than he.
Over club sandwiches at Miss Hullings, he talked about Tumpy, his babysitter, a friend of his mother’s who was better known as Josephine Baker. Over frog legs at Café de France, he explained the legal concept of armed criminal action and how he prosecuted Sonny Liston under that statute, arguing that a prizefighter’s hands were a weapon.
I carried chicken soup to his chambers when he was recovering from a quintuple bypass. “Be sure to put in red-pepper pieces and rice and peas,” the Judge requested. Between spoonfuls, he patiently explained why ex-spouses cannot be forced to testify against their former mates, research I needed for my book.
“You can’t quote a federal appellate judge in this book,” the publisher’s lawyer later screamed at me long-distance.
“Why not?” the Judge asked, laughing, when I told him. “What are they going to do to me?”
For the next book, I was going to the West Bank to research honor killings and Abu Nidal terrorists among the Palestinians. A federal undercover agent had warned me, “These terrorists are anti-Semitic and so vicious they make the Mafia look lovable.”
“What if they ask if I’m Jewish?” I asked the Judge over grilled tuna at Saint Louis University’s faculty club. “You have the right to protect yourself. It’s their prejudice,” the Judge said. I winced at having to lie. He laughed. “Want to borrow a cross?” he asked.
At another lunch, the Judge asked how things were going at work. Listening to my answer, he said, “You need to file a discrimination lawsuit. Would you like a list of good lawyers?”
The Judge was always watching your back.
The longer we had our lunches, the bawdier his stories grew. “We were so poor that as a boy I used to hide under the bed in a brothel and catch the change that fell out of the johns’ pockets,” he once told me. I believed him for years—until his best friend, Hershel Parks, told me, “We didn’t have radios or telephones, so, for entertainment, we’d make up stories. Mac would do it for laughs.”
Although he tried to go for walks (and would be stopped on the courthouse steps by all the folks who wanted to talk to him), the Judge rarely went to lunch with his colleagues. When he was assistant circuit attorney, 1953–1956, he could join them only if they went to the one restaurant downtown, Fred Harvey’s, in Union Station, that served blacks. That held until the Judge’s friend U.S. Rep. Bill Clay, then an alderman, pushed through the 1961 public-accommodation bill.
“How come you’re not bitter?” I asked one winter noon as we slogged through the snow to a downtown deli for pastrami. The Judge stopped and looked me in the eye. “Why waste time?” he said.
He was his old ebullient self when we talked at length last year on Martin Luther King Jr. Day. Two days later, I was preparing to interview him when the phone rang. It was the Judge’s former secretary, and she sounded as though she were talking underwater. Then I realized that she was crying. “That sweet, sweet man is gone,” she said. “He died this morning.”
Now his longtime law clerks are kind enough to include me in their lunches at the Westin Hotel, where we trade Judge stories over shrimp Caesars in one continuing wake. It helps not to have to let go.
And when we meet, there’s always an empty chair at the table.
