The Accidental Jurist
Judge Theodore McMillian
By Ellen F. Harris
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| Judge Theodore McMillian of the Eighth Circuit U.S. Court of Appeals, 1996. A true Renaissance man, his interests included physics, mathematics, the law, politics, opera, art, cuisine, American history, and culture. Courtesy of Wiley Price. | |
The older man put on his worn clothes and scruffy shoes as though he were going fishing, which, in a way, he was. He walked along the streets of north St. Louis, where he knew he would find a group of teenagers hanging about the weed-filled lots and boarded-up brick houses. In his soft drawl, he asked each what his plans were and listened to his answer, watching his face as he spoke. The teens rarely received such attention, and so they treated the man with respect and listened when he encouraged each one to stay in school. From his experience, the man had learned that a child can succeed if at least one adult believes in him or her.
He worked the streets undercover for decades, never letting on who he was: Judge Theodore McMillian of the Eighth Circuit U.S. Court of Appeals. Federal appellate judges are rarified creatures who sit one step below the U.S. Supreme Court justices, yet the Judge, as he was called, preferred being down to earth. During his fifty years on the bench, he focused on the human face behind each case before him.
The Judge changed hundreds of thousands of lives off and on the bench. People seeking his help wore a path to his chambers. He promoted an entire generation of women and blacks into law firms, onto law school faculties, and onto the bench at a time when women were less than 7 percent of law students, and he encouraged them to run for political office. He wrote personal checks at Christmas to friends whom he thought could use the cash. From the St. Louis Circuit bench, he revamped the Missouri Juvenile Code and issued the then-revolutionary order that juveniles be separated from adults in jails and prisons. He was among the first judges in America to permit single and blind people to adopt children. Slowly, he transformed our legal system.
“His legacy is in groundbreaking legal opinions in civil rights, free speech, desegregation and employment law,” said Leland Ware, Louis L. Redding Professor for the Study of Law and Public Policy at the University of Delaware in Newark, Delaware. The Supreme Court and Congress adopted McMillian’s logic and legal interpretation in their rulings and laws, according to Karen L. Tokarz, one of his protégées and a Washington University law professor.
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Theodore McMillian and his mother Joycie McDuffy Parker at his swearing-in ceremony as the first African American judge in Missouri, in 1956. The two were close; he visited her every Saturday morning until her death in 1993. Courtesy of Delores Reynolds. |
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At his swearing-in ceremony as the first African American to sit on the Eighth Circuit and the first black federal appellate judge west of the Mississippi River, in 1978, Judge McMillian remarked, “I feel like the mule who was in the Kentucky Derby. The Thoroughbreds looked him over and asked, ‘What are you doing here?’ And the mule replied, ‘I don’t know. I’m just happy to be here.’” He beamed his trademark full-face smile.
He was a pioneer transcending the color line for sixty years. For a black man to come from where he did and to achieve what he did is, in a word, astonishing. The Judge’s backstory explains how he achieved so much.
Betty, Tanzie, Joycie, Tumpy, and Theodore
Recognition was a long time coming. McMillian was born in another time and place, on January 28, 1919, in a cold-water tenement at Fourteenth and Papin streets in a segregated neighborhood. None of his grandparents belonged to what W. E. B. DuBois called the Talented Tenth, those college-educated black professionals who would provide “social uplift” for the Negro. Nor were they descendants of St. Louis’s antebellum “brown society” of old money and “paper bag” complexions. His grandparents migrated from mostly black, small towns in Mississippi around the turn of the last century, just ahead of the Great Migration in the 1920s that brought hundreds of thousands of poor African Americans to St. Louis and points north. His father’s family came up from Okolona, south of Tupelo in the original Cotton Belt, where syndicated Washington Post columnist William Raspberry was raised. His mother’s clan originated in Clarksdale, Mississippi, home of the Delta blues, where Ike Turner and Sam Cooke were born, where W. C. Handy played and Bessie Smith died.
St. Louis has been called the northernmost city of the Deep South because of its once-held attitude that “Negroes should know their place.” A city divided before and after the Civil War, it offered some opportunity: There were two—segregated—high schools, compared to none for blacks back home. Black men (women did not have suffrage then) could not only vote without a poll tax or literacy test, but also they held political office, and there were well-paying factory jobs. The courts had a history long before Dred Scott of supporting some civil rights claims. But Missouri remained a dangerous place; forty-seven black men were lynched between 1836 and 1942. During the East St. Louis riots of 1917, the Judge’s maternal grandfather feared the violence would spread and sent his children into St. Louis County.
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| McMillian’s mother, shown on the left in 1919, was known for her long black hair and high cheekbones, courtesy of her Cherokee grandmother. On the right is Theodore “Tanzie” McMillian, the Judge’s father, also in 1919. Tanzie, later a Golden Gloves boxing champion, moved to East Chicago Heights where he served as mayor and became a Baptist minister. Courtesy of Delores Reynolds. | |
McMillian’s birth was a case of babies having babies, although they proved to be superb parents: His mother, pretty Joycie Ann McDuffy McMillian, with her long hair, was fourteen, and her husband, the Judge’s father, soft-spoken Theodore “Tanzie” McMillian, was sixteen. The McDuffy and McMillian clans bestowed powerful gifts upon Theodore, as they called the baby. Joycie with her high cheekbones, courtesy of her Cherokee grandmother, gave her genius-level emotional intelligence, or what her family called “motherwit.” Socially graceful, she could talk to anyone, befriended everyone, and in her late eighties possessed total recall of names, facts, and faces, as did her son. The Judge’s empathy and common sense was learned at his mother’s knee. “Joycie was a sweet, sweet woman. Always laughing. Everyone in that house made jokes to help endure the hardships,” McMillian’s best friend for seventy-seven years, Hershel Parks, said.
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| Josephine Baker was known as “Tumpy” in St. Louis before she moved to France. Joycie’s brother gave Tumpy her start in his penny theater where the little girl pranced and sang. Photograph, 1935. © Missouri History Museum. | |
As a child, Joycie staged musicals every Saturday with her friend nicknamed Tumpy. Tumpy babysat Theodore until she danced off to fame and fortune in Paris as Josephine Baker. Theodore went to see her in her home in France when he was overseas during World War II, but she was gone, working with the French Resistance.
Tanzie, who later won the Golden Gloves title and became a Baptist preacher in Chicago, endowed his firstborn with a talent for leadership, athletic prowess, and physical grace. “I attribute some of Theodore’s kindness to my father as a minister,” the Judge’s sister, Marie McMillian Wilcher, said. “That’s the way he was. Always soft-spoken and if he could help you, he would.”
Tanzie’s mother, Betty McMillian Johnson, bequeathed the drive and strength to work long hours. After his parents divorced when he was seven, Theodore frequently stayed with her and her husband. Betty was always working—at her job in a meat-packing plant, cooking for her barbecue stand, and helping other African Americans during Mississippi Migration. “She left breakfast for me warming on the potbellied stove before I went to school. She said we had to get our education. We had to go to school,” the Judge told me. He worked, too, selling papers as a newsboy in his cap and knickers.
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Theodore McMillian and his little sister, Marie McMillian Wilcher, in the early 1920s. Not long after this photo was taken, their parents, Joycie and Tanzie, divorced. Courtesy of Delores Reynolds.
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Tanzie’s father was white. “We have no idea of his name. They never spoke of him,” Wilcher said. Sex between black women and white men at that time often was coercive or rape. Missouri and fifteen other border and southern states prohibited interracial marriage, calling it miscegenation, until the Supreme Court ruled against it in 1967 in Loving v. Virginia.
Joycie and Tanzie both remarried and bore more children, creating a family blended by blood and religion. The Judge saw the world as “Us,” not “Us vs. Them,” which served him well when he sat on the appellate courts hammering out opinions with more conservative judges. Joycie and her second husband, Augustus “Gus” Parker, a widower with two daughters, had five more children whom they raised as Catholic. “We were raised as sisters and brothers, not as step- or-half anything,” the Judge’s sister, Delores Reynolds, said.
The Parker household overflowed with people and pets. The pine floors were bare and the furniture secondhand, but Joycie ran a clean, tidy household and always made room for one more. “Anybody who needed a home during the Depression, Mother took them in. She nursed the sick, however long it took,” Reynolds said. The children went from sharing beds to sleeping on a pallet on the floor when relatives moved in.
Theodore saw himself as the paterfamilias of the McMillian and Parker kids, looking out for two- and four-legged creatures. When the 1927 tornado struck nearby, his teacher ordered the class to put their heads down on their desks. Instead, he ran home and up on the rooftop, where he made sure his dog and her new puppies were safe. “I thought her order was silly,” he said.
“Mac was always full of mischief,” Parks said of their childhood. They hustled ice and bottles of milk from the horsedrawn dairy wagons and stole bread from the outdoor storage bins next to a grocery store. They did inside jobs, asking a pal who worked at the corner grocery store to leave them fresh chickens in the trash can. Chicken was a treat, a vacation from the potatoes and beans served at every meal. They bummed rides by grabbing hold of the streetcar handles and hoping the cops would not see them. Sometimes, one of the boys would buy a ticket and race to the back window and hand it off to another.
“Being poor, we didn’t have radios, so for entertainment, we exchanged tall tales for laughs,” Parks said. Decades later, the Judge enjoyed repeating, “We were so poor I used to hide under the bed in a brothel and catch the change that fell from the johns’ pockets.” Then he roared; he was known for his bawdy jokes.
Always first in his class from grade school on, Mac graduated Vashon High School in three years. He was taught by some first-rate educators who today would have the choice of other professions but under Jim Crow were relegated to the classroom. “Education was it for him. Mac was a natural student, a voracious reader who never had to read anything twice for tests. I used to accuse him of just putting his books under his pillow. He was far ahead of us intellectually, but he never wanted us to feel we were not on his level, so he always used plain, everyday English. He excelled in Latin and French,” Parks said. “He was a good Shakespeare man. He quoted Julius Caesar all the time, especially, ‘Et tu, Brute.’ He loved the The Iliad and The Odyssey.
“He admired Achilles’s strength and would talk about how everyone has an Achilles heel,” Parks added. “He knew his was girls. He had no other [bad] habits. He rode his bicycle, played baseball, and chased girls. Everything he did in sports or in school was so effortless, so smooth.”
Yet Mac had only one choice for college. Segregation barred his way to the local universities and he lacked the funds to go to the noted black Howard University in Washington, D.C. He took the train to Jefferson City, where he attended the segregated Lincoln University, founded at the close of the Civil War by the Colored Infantry. Home during a break, Mac gave money to Lloyd Gaines for his 1938 landmark Supreme Court case, Missouri ex rel. Gaines v. Canada, which forced state universities to either desegregate or provide equal, in-state law schools for blacks. Gaines was a prelude to Brown v. Board of Education.
The Accidental Jurist
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| Lt. Theodore McMillian and his bride, Minnie Foster McMillian, married the day after the bombing of Pearl Harbor. McMillian served in the Signal Corps in Germany and belonged to a unit of the Buffalo Soldiers, the all-black troop that originated during the War of 1812. Courtesy of Delores Reynolds. |
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McMillian arrived on the bench in an unusual way; he never planned to be there in the first place. He worked his way through Lincoln as a Pullman train porter, a humiliating and menial though coveted job that pulled many blacks into the middle class. Again, he graduated first in his class, majoring in mathematics, physics, and chemistry, and was a member of Phi Beta Kappa. He planned to go to the University of Chicago for his doctorate in physics and to work on the atomic bomb. Pearl Harbor intervened and instead of the Windy City, Second Lt. McMillian went to Germany with the Twenty-fourth Infantry Regiment, a Buffalo Soldier unit of African Americans in the segregated army.
He joked about the army being forced to give him his own officers’ club when segregation barred him from drinking with his peers; but the racism stung. “I was good enough to fight and perhaps die for this country, but when I came back I was not accepted as a first-class citizen. It was a bitter pill to swallow,” he told his friend, William J. Shaw, later the St. Louis County public defender. After V-E Day, McMillian applied to Washington University School of Medicine only to learn its racial quota put him on a five-year waiting list. “I can’t have my wife support me forever,” he said and opted for law school instead.
He made headlines as one of the first African American students admitted to the Saint Louis University School of Law. When the school threw a dance at a nearby hotel and the manager refused to admit McMillian, the school’s dean, along with Professor Joseph Simeone, went to complain. “Yet Ted never showed his anger [about it]. He was always kind and gentle,” Simeone said. “He understood the importance of being positive when you’re the first,” said Randy Hayman, general counsel for Metropolitan Sewer District and another McMillian protégé.
Because the Jesuits were early civil rights activists, McMillian converted to Catholicism, although he later quipped to me, “I switched because a Mass is shorter than a Baptist Sunday service.”
Although he was graduated first in his law school class (1949), none of the downtown law firms would hire him. “Mac’s pigmentation was a little too brown,” Parks said. McMillian and a friend opened their two-man law firm west of downtown after landlords refused to rent downtown office space to African Americans. He made so little money that he was forced to take the job of manager for a black movie house. “When the CEO, a white man, looked over Mac’s background, he said, ‘With a résumé like this, why would you have trouble finding a job? Anybody would be happy to hire you,’” Parks recalled. “Mac smiled and said, ‘It’s kinda hard to break ground right now.’ He was laid back. We never made a big deal about that. We’d brush it off and keep on going.”
McMillian never complained about the lemons life threw at him; instead, he made lemonade. “I had time, so I would go watch the greats in trial, civil and criminal, and study how they did it. When those cases went up on appeal, I’d read the trial transcripts and listen to the oral arguments. I learned a lot,” he told me. Indeed, he later regularly bested those top attorneys in trial. In 1950, he took on the lawyers for Webster Groves after city officials refused to allow black residents to swim in its municipal swimming pool, and he won.
McMillian hit a bit of luck in 1953 when a former law school classmate recommended him to his brother, Edward L. Dowd Sr., the newly elected circuit attorney who hired McMillian. Once inside the establishment, McMillian began changing the system. Prosecutors then allowed black murder defendants to plead guilty and spend a year in the city workhouse. “Negro life is worth more than that,” McMillian and a colleague told Dowd. “We want to try black homicide cases instead of giving them away.” McMillian balanced the highest win record with respect for the civil rights of those he prosecuted. His last big case was against prizefighter Sonny Liston, who pleaded guilty to beating a police officer. The governor took notice of McMillian and appointed him as the first black judge in the old slave state of Missouri in 1956.
His geniality belied his toughness when necessary. As race riots erupted across America after Martin Luther King’s assassination, civil rights leaders in St. Louis met to defuse the tension. “Judge Mac was a civil rights activist in robe. He took an active role so St. Louis didn’t burn. He was our diplomat because he had the respect of all sides,” said his friend, cofounder of the Congressional Black Caucus, former U.S. Representative William L. Clay Sr (D-St. Louis). The Judge met with white power brokers and won jobs and services for blacks. He perfected his diplomatic skills after he was appointed to the Missouri Court of Appeals, Eastern District, in 1972.
“When I went on the court, I deliberately reached out to the Republican appointees. I wanted to build a bridge so we’d have consensus for our rulings,” Judge McMillian told me. His skills stood him well after President Jimmy Carter named him to the Eighth Circuit, which establishes the law in the seven-state slice of America from Minnesota to Arkansas. The Senate confirmed Judge McMillian in less than fifteen minutes: “Ted was known for building consensus. His willingness to listen gave him a lot of respect on the court. He would listen to their [other judges’] opinions about a case and then would come up with an argument that would appeal to them,” retired Eighth Circuit judge Gerald W. Heaney said. His most conservative colleagues appointed by George H. W. Bush and George W. Bush speak of how they “loved Ted.”
But when he took off his robe, doors slammed in his face. As a new judge, he was refused service at downtown restaurants. Some of his fellow judges held dinner meetings at private clubs that would allow McMillian in as a guest but would refuse to admit him as a member. (After the discrimination he endured, he was angered when prominent blacks made anti-Semitic remarks. “Jews were our friends when no one else was,” he told me, shaking his head.)
How did the Judge avoid internalizing prejudice and becoming depressed? “It was a historical fact to him as it was to many of his generation. I never heard him dwell on discrimination. His goal was justice, and everything else was just background noise. The Judge was a genius at moving on,” U.S. District Judge Charles A. Shaw (not related to William Shaw) said. “Ted could take a punch from life,” Parks summed up.
Little Theodore
The Judge endured a few sucker punches at home too. His high school sweetheart, Margaret Primm, gave birth to Theodore McMillian Jr., and Mac asked her to wait for him until he graduated from Lincoln. “He was devastated when she married someone else,” Reynolds said. McMillian helped support his son, “who looked just like him. Theodore brought him around the family. Little Theodore had been a good kid, a sweet boy. Then he was always getting into something. At first we thought he did it to spite his father, then he did crazy things, things you just don’t do. Breaking and stealing,” she said.
As Judge McMillian garnered newspaper headlines for his reforms and rulings, Little Theodore accumulated a long arrest record. As the father went up the bench, the son went in and out of prison. Then he reformed and began working; he was thirty-six when his girlfriend fatally shot him in a drive-by in 1972. “That broke Theodore’s heart,” Reynolds said. You could see the light go out of him. We’d see him sitting and with the look on his face knew what he was thinking,” Reynolds said.
Long before he buried his only child, McMillian wanted more children, but his wife, the former Minnie Foster, could not have them, nor did she want to adopt. They had married the day after Pearl Harbor was attacked, and by the time he was an assistant circuit attorney it was clear they were a mismatch. “They lived separate lives in their own house,” Parks said of their beautiful twelve-room home at 4550 Holly Place, facing O’Fallon Park, where black professionals lived. The week before Minnie died in 2001, they renewed their vows with a priest at her hospital bed.
I once asked the Judge why he was not bitter after all he had suffered. He looked me in the eyes and asked, “Why waste time?”
“It’s More Important to Be Human”
A gentleman and a gentle man, Judge McMillian was the stealth rebel. Like another pioneer of his era, Jackie Robinson, he had a personality that drew people to him. “Many people are ill equipped to handle such ascendancy. They want to torch a situation rather than work within the establishment. When there is so much racial animosity, you can’t afford a firebrand. You need someone who can handle the slings and arrows and not be sidetracked from the mission. The Judge’s was justice, being a role model and pulling others up,” Judge Charles Shaw said. “He asked me if I had considered being a state judge back when I was a federal prosecutor and suggested a federal judgeship as an ultimate goal. He planted the seed.”
“He would never ever imply that you couldn't reach his level,” Randy Hayman said. “In the African American community sometimes there is a lot of ‘you can’t.’ He must have gotten it from both sides, bigotry from some whites and envy from some blacks. He was always able to rise above it.”
He did just that by co-founding two major civic organizations: Legal Services of Eastern Missouri, formerly Legal Aid, in 1956; Herbert Hoover Boys and Girls Clubs in 1967; and one of the first Human Development Corporations in the United States during Lyndon Johnson’s War on Poverty.
Across from his desk in his chambers, the Judge hung a framed quote from Will Rogers: “It’s good to be important, but it’s more important to be human.” By then, he was listed in Who’s Who, named one of Ebony magazine’s 100 Top African Americans, and honored with the American Bar Association’s Spirit of Excellence award. His accolades, black robe, and first-name basis with U.S. senators never impressed him. “He never changed,” his old friends and family said. “The friends he had in high school remained his friends,” Mrs. Reynolds said. His manners were one size fits all, and everyone spoke of his amazing humility.
“Life Is What They’re Going to Get”
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| Judge McMillian’s formal court portrait, made when he took senior status in 2002. The Judge continued to work full time until his death days before his 87th birthday. Courtesy of the Eighth Circuit U.S. Court of Appeals. | |
He refused to slow down in his seventies, not even after sextuple-bypass surgery. Within weeks, he was sitting at his desk, going through his docket. “I was appointed for life and life is what they are going to get,” Judge McMillian liked to say. To reach him at night or on holidays, one had only to call his office. “I get more work done when there’s no one around,” he explained.
By 2001, his diabetes forced him into dialysis, which consumed three hours a day. “It’s a waste of time,” he said and learned to self-administer it.
He took ill during Bush’s State of the Union Address in January 2002. “It made me sick,” he joked from his hospital bed. By then, he knew his time was limited, but he was not ready to leave. He asked for more cases on Friday, January 13, 2006, and jauntily walked out of the office for the long Martin Luther King weekend. He never returned, dying early Wednesday, January 18, ten days before his eighty-seventh birthday.
Judge McMillian has been gone for several years now, yet remains a living presence to many of us.