MICHAEL MELSTNER: SOUL OF A WRITER

When I first reached out to Michael in the fall of 2009, I had read his then-newly published memoir, The Making of a Civil Rights Lawyer [1] and his seminal opus, Cruel & Unusual: The Supreme Court and Capital Punishment [2]—twice. The pages of my copy are dog-eared and littered with margin notes. Fastened to the front cover with yellowing Scotch tape is a photograph of Michael as he was then: a shock of brown hair, luxuriant mustache, Clark Kent glasses, perched in front of a bookshelf, his eyes beaming intelligence, his mouth agape in a smile that knew.

Cruel & Unusual is remarkable in many ways, but none so much as the very fact of it. Had any lawyer ever so thoroughly, forthrightly, and publicly laid out the choices that he and his colleagues had made in constructing a litigation campaign of such magnitude? The audacity of this makes Michael a constant presence in the book. His work is jarringly open. He spares no one the focus of his psychoanalytic interest: Supreme Court justices, death penalty supporters, the leadership of LDF, himself. In October, 1973, Tony Amsterdam wrote to him:

It is a beautiful book, Michael, and the world is richer for it. But I am not sure that any but the initiated will ever know how really good it is since some of its incredible achievement can only be understood by those in a position to appreciate its astounding accuracy, unstinting honesty, and its perceptions into the dynamics of which the celebrants were largely unaware. It is a playwright’s genius to make his audience comprehend what the players do not.[3]

When I met Michael here in his office on that Thursday in December, I knew two things. One, I knew Michael’s book better than he did. Two, I couldn’t write my own book without him.

Now, of course I don’t mean to suggest that I knew the history better than Michael. Just that our orientation to it was different. As someone who had both shaped the history and written about it, Michael would default to his actual experience, whereas I knew his part in what had happened through his words. This distinction fundamentally shaped my experience of Michael.

When you’re a writer, people either know you first or your work. Having been on both sides of this, I think it’s better for them to know you as a writer first. Reading a friend’s book is almost inevitably disappointing. The reader can’t help but speculate whose lives his friend has drawn upon in molding the characters or what internal conflict is being worked out. Even if the work is novel in the grandest sense, the themes will be familiar or, worse still, the jokes.

If they know the written work first, the experience is totally different. The author can be gracious, magnanimous. One time after a reading of my novel Q—about a relentlessly dissatisfied neurotic visited by himself from the future, a young woman asked me to sign her book. I asked her who had dragged her to the event. She said no one—that she’d read my book and wanted to see what I was like.

“How was I,” I asked.

“Pretty much as I expected,” she said.

I took it as a compliment—because she knew me as a writer.

I first knew Michael Meltsner as a writer. And he was most gracious to me.

He sat through dozens of interviews, shared his files, and made connections to the wide cast of characters whose perspectives made the book as rich as it was, I think. He was the greatest patron of A Wild Justice and its staunchest defender. And, most significantly, he was my friend. As I said in my dedication, Michael’s friendship was—and is—the book’s greatest gift to me. Our relationship has been one of the best surprises of my adult life. We’ve quaffed the full, redolent potpourri of experiences and emotions that form the fabric of any great friendship: probing conversations, wilderness hikes, disbelief in our changing world, transferences of parental relationships, occasional conflict, a lot of good laughs, and most of all deep respect and love.

But even as our relationship has evolved and blossomed, I still see Michael first and foremost as a writer, and as we reflect on his career, I can’t help but think of a book that most of you probably have not read—Short Takes,[4] published by Random House in 1979. The hero is Jeremy, a New York-bred pro bono lawyer and law-school teacher, with an inherited love of horse racing and cards, the only child of a long-suffering, now-dead father and over-protective mother who’s tempted by a distant deanship as he works through cases, and consequently and simultaneously his own neuroses, with a clientele that includes Lenny Bruce, a dominatrix, and an innocent man sentenced to die in Georgia.

It’s a novel.

But it’s unlike any novel you’ve ever read. The prose flows like a stream of consciousness. There’s a digression on Admiral Byrd’s inhalation of carbon monoxide fumes, a dream of playing poker with Gary Gilmore at a butcher-block table set in the middle of Central Park South, an aside about a musical comedy based on the works of Hegel called Once Upon a Dialectic. It’s like a 240-page therapy session—analysis of others, analysis of self, analysis of analysis. Jeremy writes, “The problem with psychoanalysis, even in the hands of an artist like Manny [his therapist] is that all too often it forgets that the crazy side of our nature protects us from nothingness.”[5] Yet Manny tells Jeremy, “When you complete treatment, no doubt you’ll want to become a therapist.”

The themes will be familiar to anyone who knows Michael and his life’s work—the privilege we enjoy, shocking directness about race—after Jeremy gets into an altercation with a line-cutter, he confesses that “it was annoying to realize that I wouldn’t have touched the kid if he’d been black,”[6] and, most of all, the concern with living a good life.

Are we good to be good or because we like the way that being good makes us appear to others? What does it even mean to do good? While working at his pro bono organization—called Good Works—Jeremy pitches to a study commission a reformist idea to set up businesses run by inmates. It’s shot down by a union leader. Jeremy writes, “The union man taught us you don’t necessarily do good by being good.”[7]

This theme—the complication of defining and leading a good life, recur through Michael’s oeuvre more than any other. In his memoir of his legal career, The Making of a Civil Rights Lawyer, Michael tells us of questioning Jack Greenberg about his $6,000 salary—he thinks he’s getting too much. Greenberg tells him, “Never, never take less money for doing good.”[8] Later Michael asks, “What did it mean that my work had become the most significant identifying feature of my life,”[9] a question he ties to his own father’s struggle against adversity.

In his soon-to-be published With Passion[10]—part memoir, part reflection on activism, Michael tells of learning of the sudden death of Norman Zinberg, a doctor and researcher. When he sees Dr. Zinberg’s widow, he asks, “Did Norman feel he’d lived a good life?” Years later, as a “bag of chemo emptied drip by slow drip into my left arm,” that’s the question with which he consoles himself: “How to live?—and if we can answer it well, then its the best revenge—but really the only one we’ve got.” The word good appears 86 times in his new book. In my own work, the only word that appears so often is “bunion.”

Everywhere, in everything Michael has ever written, Michael is present, laying himself bare, interested most in the ways we talk about ourselves. He has a deep mistrust of words—“ultimately…they hide more than they reveal,”[11] but paradoxically the keenest interest in the stories we tell about ourselves, even as he doubts them because they’re grounded in language. Trying to reconcile this fundamental contradiction is what led him to become a therapist himself, and I see as the common thread to his career.

Many of you may not know that in his spare time—when he wasn’t overturning the death penalty or representing Muhammad Ali or deaning or bringing families back together, Michael was one of the pioneers of clinical legal education—commonplace today, but heretical in the 1970s. What is clinical legal education but the desire to turn words into lived experiences? In Making of a Civil Rights Lawyer, Michael tells of his dissatisfaction with the “concept of law as a quasi-scientific enterprise” and his disdain for “Langdell’s belief that law could only be understood by analysis of appellate court opinions…the strategy and tactics of practice, the volatility of facts, and the pattern of institutional life were distractions, not sources of learning from a master teacher.”[12] I tell my students they must learn to ask: “Where am I? Who else is there? What do I and they want? What happens next, and what came before?”[13]

I see this demand for honesty about our position as situated selves as essential to Michael’s own position as a transformative and leading opponent of the death penalty, one that he’s held for more than 50 years. “I was a different kind of abolitionist,” he writes. “Most…talked about deterrence and retribution…I…find myself unmoved by the academic and abstract quality of such discourse. The problem for me was that all sorts of crimes made me feel the killer deserved to die.”[14] When his work on the death penalty began, he explains, it took a while to learn that “I could feel repulsion and acknowledge the wish for retribution without having to conclude that my feelings should be written into law. Capital punishment had to be seen as a system that operated generally.” He goes on, “Still, I knew where the impulse came from and found it anything but alien; even if I ended up in the same place as the organized abolitionists, I couldn’t talk about legal death the way they did.”[15]

I honor Michael’s legal work. I think I understand it better than most others and I’ve said many times that I would have been thrilled to work with Michael at LDF and happily would have spent a career there. None of the NAACP Legal Defense Fund’s successes would have been possible without him. Tony Amsterdam saw Michael as the abolition campaign’s essential driving force. On June 30th, 1972—a day after winning Furman—Tony wrote to Michael:

The battle resumes again tomorrow, but we can afford a moment’s respite today. That moment gives me the chance to say a word of deep gratitude. Your part in the capital punishment struggle was at the heart of everything that has been won. You started it, and largely kept it going with your ideas, incredible labors, and tireless commitment.[16]

Prof. Amsterdam is surely right. But I think Michael’s greatest legacy is how he’s spoken about the death penalty, both in his legal work and in the years since. It’s part of his larger project of changing how we talk about the law. “Most people who know anything about litigation regard it as a fraud. Not that important things aren’t decided. On the contrary, it’s just that the third-hand stories heard in court are marketed as truth. Lawyers, judges, the parties themselves must act as if they were certain.[17]

This certainty is Michael’s mortal foe. The hubris of lawyers, of politicians, of the powerful, and anyone who would use the law to end lives that they conclusively determine to be unredeemable. Michael’s life’s work has been the teaching of humility—about ourselves, our relationships and our institutions. It has been and will continue to be the foundation of a very good life.

[1] Michael Meltsner, The Making of a Civil Rights Lawyer (2006), p.32.

[2] Michael Meltsner, Cruel & Unusual: The Supreme Court and Capital Punishment (1973).

[3] Evan J. Mandery, A WILD JUSTICE: THE DEATH AND RESURRECTION OF CAPITAL PUNISHMENT IN AMERICA (2013), 261.

[4] Michael Meltsner, SHORT TAKES (1979).

[5] Id. at 97.

[6] Meltsner, supra note 2, at 112.

[7] Id. at 19.

[8] Michael Meltsner, The Making of a Civil Rights Lawyer (2006), p.32.

[9] Id. at 77.

[10] Michael Meltsner, With Passion: An Activist Lawyer’s Life (2017).

[11] Id. at 13.

[12] Meltsner, supra note 6, at 44.

[13] Id. at 176.

[14] Id. at 204.

[15] Id. at 205.

[16] Mandery, supra note 3, at 243.

[17] Id. at 10.