Michael R. Schmidt
Abner J. Mikva — a former congressman, federal appeals judge and White House counsel — is one of less than 30 people to have served in all three branches of the federal government. He received the Presidential Medal of Freedom from President Barack Obama in November. 
Posted April 24, 2015 1:52 PM
Updated April 30, 2015 12:47 PM

Abner Mikva: A public service triple crown

By Jamie Loo
Law Bulletin staff writer

The South Side ward committeeman sneered as he lifted a cigar back to his mouth.

“We don’t want nobody that nobody sent,” he told the eager first-year law school student.

It was 1948, and a young Abner J. Mikva had just walked into the 8th Ward Committee office, hoping to volunteer for the Democratic nominees for governor and Senate.

Nobody — that is, nobody in the city’s political machine — had referred Mikva to the office.

On that day, Mikva ran into the political wall in Illinois politics. Years later, he returned with a sledgehammer to bust a hole through it.

Over the next five decades, the onetime nobody became a state representative, a member of Congress, a federal appeals judge and the top legal adviser in the White House.

Mikva, now 89, is one of fewer than 30 people to ever serve in all three branches of the federal government. In November, he added the Presidential Medal of Freedom — the highest honor the federal government can give a civilian — to his resume.

“Ab transcends any single moment in recent political history,” President Barack Obama said at the ceremony. “But he had a hand in shaping some of the best of it.”

A wife’s wishes

Mikva was born on Jan. 21, 1926, in Milwaukee to Ukrainian immigrants Henry and Ida Mikva. His mother barely spoke English, and Yiddish was the main language in their home.

During the Great Depression, Mikva’s father was often unemployed, and the family relied on welfare. Poverty hung over his family like a cloud — and he hated it.

“We all wore the same blue wool caps and big bulky shoes and same jackets,” he said. “So everybody knew if you were on relief.”

During World War II, Mikva enlisted and trained in the Army Air Corps, but combat ended when he was one day away from being deployed.

In December 1946, Mikva met his future wife, Zoe Wise. The couple graduated from Washington University in St. Louis and got married that same year, 1948.

Prior to the war, he wanted to be a journalist but was considering becoming an accountant so his family could have a financially stable life. Zoe, though, didn’t want to marry an accountant and suggested he go to law school.

Mikva didn’t know much about what it meant to be a lawyer. In his law school application, Mikva wrote that he was “fired up with an ambition and desire to do well in a field of endeavor in which I can apply my reasoning powers as well as the formal education I have acquired.”

He noted, however, that although “my plans for applying the training of law are not yet crystallized, I have a desire to enter public service.”

At the University of Chicago Law School, his fascination with the law formed quickly. While Mikva was nervous he wouldn’t even make it through his first-year exams, Zoe’s support helped him find his professional passion.

“I would not have been a lawyer but for her,” he said about his wife of 66 years. “And, well, this part she may have regretted — I would not have been in politics but for her.”

Beating the machine

Mikva was captivated by the legislative process the first time he went to Washington, D.C.

In 1951, he was a law clerk for Supreme Court Justice Sherman Minton. When things were slow at the court, he went to watch Congress in action.

“It just seemed to work so well,” he said. “It was ponderous and slow, yet somehow seemed to get the people’s will accomplished.”

After graduating from law school and finishing the clerkship with Minton, he returned to Chicago to practice at a firm where he eventually became a name partner — Goldberg, Devoe, Shadur & Mikva — handling labor, real estate, commercial and civil rights law as well as some criminal defense cases.

At one point, he considered moving his practice to the firm’s D.C. office or leaving the Hyde Park neighborhood for the suburbs. That thought was erased when an Illinois House vacancy emerged in his district in 1956.

Zoe encouraged her husband to run, but Mikva would have to beat two other candidates supported by the Democratic machine. He won with 40 percent of the vote.

During his 10-year career in the state legislature, Mikva served as chair of the House Judiciary Committee and shepherded the passage of a new criminal code and mental health code. He also fought for fair housing, employment rights and anti-corruption measures.

Once in office, Mikva got along with most Democrats, he said, except for Mayor Richard J. Daley, who “never really forgave me for coming up the wrong way, not paying my dues.”

When Mikva ran for a U.S. House seat in 1968, Daley did reluctantly offer his endorsement — an acknowledgement, said former Mikva law partner Ronald S. Miller, that he was “by no means a candidate they could control.”

For two terms, Mikva represented Hyde Park and parts of the South Side. After moving to the North Shore, he lost the 1972 election but was elected to a different seat in 1974.

In Congress, Mikva was known as a liberal leader who fought against the death penalty and supported abortion rights and other progressive causes. He co-sponsored the 26th Amendment, which lowered the voting age in federal elections from 21 to 18.

“Throughout his career, he was a champion for civil liberties, minority voting rights, free speech rights and equality, in terms of education and economic opportunities for all,” said University of Chicago law professor Geoffrey R. Stone. “He is someone who really stood up in favor of these issues even when it was politically unpopular.”

His proudest legislative accomplishment, though, came about in an unexpected way.

While giving a speech at Hyde Park High School, a student asked him a startling question: “What are you going to do about all those camps they’ve got where they’re going to put all us black folk?”

Mikva didn’t know what he was talking about, so the student showed him a picture from a black Muslim newspaper. It depicted a camp surrounded by a barb-wire fence with a sign that said “Keep Out: Property of the United States Government.” The caption indicated it was in central Illinois.

Mikva sent a staff member to investigate. The picture was accurate. Back in Washington, Mikva learned Congress had passed an internal security law in the 1950s to create such camps. Though they hadn’t been used yet, the attorney general had been given the power to detain rioters there in the event of mass disturbance.

He immediately began drafting a bill to repeal the law but discovered that an effort was already underway. A few Japanese-American congressmen, still reeling over internment camps set up during World War II, had a bill that repeatedly stalled in the House Un-American Activities Committee.

Mikva’s office strategized a way around that roadblock by taking the bill through the House Judiciary Committee, and the Non-Detention Act of 1971 passed the House and Senate and was signed by President Richard Nixon.

“Because one high school kid on the South Side of Chicago put a question to his Congressman, we got an important, odious piece of law changed,” he said.

When President Jimmy Carter nominated Mikva for a seat on the U.S. Court of Appeals for the D.C. Circuit in 1979, he ran into a frequent opponent — the National Rifle Association. The group spent $1 million to try and block the confirmation of Mikva, known for his support of gun control.

But Mikva’s integrity, decency and intelligence earned him the respect of many Republicans, Stone said. Several testified on his behalf at his confirmation hearings, and former President Gerald Ford sent a letter in support.

“He has a remarkable ability to listen to other points of view and not only gain the respect of people who are politically like-minded but those with opposing views as well,” Miller said.

‘Air Bag Abner’

Ideologically, Mikva was very different from Minton, the conservative high court justice he clerked for in the 1950s.

One time, after reading the first draft of an opinion Mikva wrote, Minton came out of his office muttering, “God damn left-wing University of Chicago … ”

“I turned to my co-clerk from Indiana who was much more liberal than I was and said ‘Here, Ray, you do it,’” Mikva said. “And Ray did a draft and it was even more unsatisfactory, so the justice ended up writing it by himself with his secretary.”

Despite their differences, Mikva admired that Minton had served in Congress before joining the high court. He’s disappointed more current judges don’t have legislative experience; the last Supreme Court justice to serve in a legislature was Sandra Day O’Connor, a former Arizona state senator.

When a judge reviews a law, Mikva said, he or she should focus on the intent of the legislative body — by examining hearings, debates and understanding amendments that passed and failed.

Judges are not supposed to make the law, he emphasized.

“That’s the purpose of the judicial-legislative interpretation — to do not what the judge thinks is best for the country but what the judge thinks the legislative body did,” he said.

Mikva believes he clung to that philosophy while on the bench. Though critics accused him of being an “activist judge” during his tenure from 1979 to 1994, he contends the more than 300 opinions indicate otherwise.

“There were many decisions that I wrote where I didn’t agree with the result,” he said. “But I felt constrained to come up with that result because that’s what the Supreme Court had said that’s what the Constitution and the law meant.”

Mikva did, however, get to issue some decisions that dovetailed with his reputation as a civil liberties champion.

In 1993, Mikva wrote an opinion that indirectly challenged the Pentagon’s ban on gay people openly serving in the military.

The case involved Naval Academy midshipman Joseph Steffan, who admitted to a superior that he was gay after an investigation into rumors about his sexual orientation. He was forced to resign six weeks before his 1987 graduation.

Writing for the three-judge panel, Mikva determined the Navy had violated the Constitution’s equal protection clause and treated Steffan differently based on his “thoughts and desires” rather than actual conduct. Mikva found the arguments used to exclude gays from the military were similar to those used in the 1940s against racial integration, primarily targeting black people from serving.

“The Constitution does not allow government to subordinate a class of persons simply because others do not like them,” he wrote, adding “America’s hallmark has been to judge people by what they do, and not by who they are. … It is fundamentally unjust to abort a most promising military career solely because of a truthful confession of a sexual preference different from that of the majority.”

A year later, after Mikva had left the court, the decision was reviewed en banc and overturned.

Other Mikva decisions attracted controversy, including a 1982 ruling overturning the Reagan administration’s move to no longer require car manufacturers to include seat belts and air bags in new vehicles. Insurance companies sued.

Mikva determined a federal agency needed a rational reason to justify reversing course on a policy passed by Congress. Here, he said, it hadn’t.

The Wall Street Journal wrote a blistering editorial under the headline “Air Bag Abner.”

“But the Supreme Court upheld me, and we kept seat belts and air bags,” he said. “I feel very proud to have been a part of a decision that has saved a lot of lives.”

Federal judges are insulated from such public criticism, he said, thanks to the appointment process that allows them to focus on the facts of a case without worrying about political influence and elections. He doesn’t believe judges should be elected.

“They’re supposed to protect the people who are the most unpopular in our society,” he said. “The idea that a judge is supposed to take this unpopular role and then supposed to run in a popular election just makes no sense.”

White House and home

After 15 years on the bench and four years as chief judge, Mikva was picked to be President Bill Clinton’s White House counsel in 1994. Although a federal judgeship is a lifetime appointment, rules require chief judges to step down at age 70. With only two years until that date, Mikva didn’t want to return to a regular judgeship.

But once he got to the White House, he was quickly reminded of the hectic pace of the executive and legislative branches.

“I was the oldest person in the White House,” he said. “I would get to office about 6 in the morning because our first meeting was at 7, and I’d stagger out of there by 8 or 9 at night — and I was the first one to leave.”

After an exhausting year, Mikva resigned in 1995.

Being part of all three branches of the federal government, he said, gave him an awareness of the complicated intricacy of the separation of powers. Mikva said the three branches “have to interact with each other, but they have to do it carefully.”

“The court shouldn’t get in the way of the legislature,” he said. “The president shouldn’t trump the legislature’s supreme power. They are the first branch of government.”

Mikva returned to Chicago to become an adjunct professor at his alma mater, where he later served as senior director of the Edwin F. Mandel Legal Aid Clinic. In 2014, the school awarded him the Benton Medal for Distinguished Public Service, given to venerable individuals in the field of education.

He began serving as a mediator at JAMS Inc. in 1995, was chair of the Illinois Human Rights Commission in 2006 and led a state commission in 2009 that investigated admissions practices at the University of Illinois that involved politically connected applicants.

It was at U. of C. that he befriended Barack Obama, who was also teaching there.

When Mikva was a federal judge, he had tried to recruit the future president to be his law clerk, but the offer was declined. As colleagues at the law school, Mikva said, they often had breakfast and lunch together. When Obama was elected to the state Senate, they swapped stories about Springfield.

Mikva has had a hand in dozens of other political and judicial careers, including Supreme Court Justice Elena Kagan and Judge Christopher R. “Casey” Cooper of the D.C. appeals court, who are both former law clerks. Other Mikva clerks have gone onto lives in public service or teaching, having their own influence on the law.

One Mikva clerk — Jeffrey L. Bleich, a former special counsel to Obama and former ambassador to Australia — later clerked for the notably conservative chief justice William Rehnquist.

“Rehnquist liked him, and I liked him,” Mikva said. “It shows that when a clerk is good, he can please all different points of view.”

Hope for the future

Now far away from the workings of the federal government, Mikva is frustrated by the gridlock that polarizes it and the fractured relationship between Congress and the president.

That mistrust, in turn, breeds public cynicism.

“Most people now who run for Congress run against Washington,” he said. “The president runs against Washington, and as a result, people hate Washington.”

Confirmation fights in Congress, the heavy influence of money in elections and the media have also discouraged participation, he said. Many talented people choose not to seek legislative or judicial office, Mikva said, to avoid putting themselves or their families in the spotlight.

Yet, Mikva sees hope in the future.

When he and Zoe left Washington, former staff members wanted to do something to honor the couple. Instead of a lecture series or similar event, Mikva’s wife suggested doing something to get young people involved in politics.

The idea for the Mikva Challenge was born.

With civic education classes rarely offered in schools today, he said, there are fewer entry points for and more obstacles for inner-city Chicago students to get involved with politics.

“You can’t worry about your government if you’re worried about getting shot on the way home from school,” he said.

The Mikva Challenge gets students involved in “action civics” — hands-on experiences with the electoral and legislative process. Students get directly involved in elections, including volunteering with campaigns and serving as election judges.

The nonprofit, nonpartisan organization connects students with Democratic, Republican and third-party campaigns. Every four years, students go to Iowa and New Hampshire to be part of the presidential caucuses and primaries.

“The whole idea is to just give this younger generation an empowerment feeling about government and their role in it,” Mikva said.

The Mikva Challenge is now in 110 schools and reaches more than 6,000 students in the metropolitan area. The effort has also expanded to Los Angeles.

At the Medal of Freedom ceremony, Mikva was joined by his three daughters, Cook County Circuit Judge Mary Lane Mikva, Northwestern University law professor Laurie I. Mikva and Rachel S. Mikva, a rabbi and professor at the Chicago Theological Seminary, and three of his seven grandchildren.

At that White House event, Mikva also met Molly Dillon, a former Mikva Challenge college intern who is now a policy assistant in the Obama administration.

It was a proud moment for him. The next great shapers of democracy could be students who, without a little help, wouldn’t have connected with politics — fellow nobodies that nobody sent.

“That’s where my optimism springs from,” he said. “I think this next generation is going to do just fine.”