More judicial poetry

It’s been twenty-five years since the death of Judge Irving Goldberg, who served on the Fifth Circuit Court of Appeal, which oversees the lower federal courts in Texas, Louisiana, and Mississippi. (The Fifth Circuit used to be a lot bigger, covering most of the rest of the “old South,” but several powerful senators, unhappy with the pro-civil rights decisions often reached by that court, “split” the circuit in 1981 to create the new Eleventh Circuit, giving Pres. Ronald Reagan a whole new crop of judges to appoint.)

Over the years, Goldberg has been a good source of material for this column. In response to an attorney’s argument that “.82” was not the equivalent of “82 percent,” he cited an eighth grade math textbook as his authoritative “treatise” on the important legal principle “How to convert a decimal into a fraction, and vice versa.” He once began an opinion about whether fertilizer used in commercial farming was deductible with the memorable lines, “‘To every thing there is a season, and a time to every purpose under the heavens: A time to be born, a time to die, a time to plant, and a time to pluck up that which is planted;’ a time to purchase fertilizer, and a time to take a deduction for that which is purchased.”

Goldberg’s crowning moment may have been a 1978 opinion dealing with a dispute between a publisher of a series of children’s science books, known as the “Golden Guides,” and the author of most of the series, the unforgettably-named Dr. Herbert S. Zim. Reaching back to his Jewish heritage, Goldberg wrote his opinion about Zim’s quarrel with his publisher as if it were lifted from the Old Testament. No other court opinion begins quite as memorably as, “In the beginning, Zim created the concept of the Golden Guides. For the earth was dark and ignorance filled the void. And Zim said, let there be enlightenment.”

In 1979, Goldberg was called upon to resolve a much duller dispute between the National Labor Relations Board (NLRB) and Anderson Greenwood & Co., a manufacturer of pressure relief valves. (Wait . . . there are actually companies who make something as specific as just one kind of valve?)

The case involved a disputed union election that was overseen by the NLRB, and Anderson Greenwood wanted to get witness statements collected by the NLRB during its investigation of the election. The NLRB refused to turn them over, and Anderson filed suit to compel their production. The federal trial court ordered the NLRB to turn them over, and the stage was set for the NLRB’S appeal to Goldberg’s court.

In reviewing the arguments of the attorneys on both sides, Goldberg apparently noted that the two leading cases on this kind of document disclosure were Clements Wire v. NLRB and Robbins Tire and Rubber v. NLRB, one already decided by Goldberg’s own court, and the other having been resolved by the Supreme Court. It was not much of a step for him to decide that, while this wasn’t the occasion for another Biblical epic, having the two leading cases be Clements Wire and Robbins Tire was irresistible. So, after briefly summarizing the facts of the case, Goldberg made his own foray into the realm of judicial poetry:

Our decision in Robbins Tire, Interpreting Congresses’ reported desires,

Exposed workers to their bosses’ ire.

The High Court, avoiding this sticky quagmire,

And fearing employers would threaten to fire,

Sent our holding to the funeral pyre.

Then along came Clements Wire,

Soon after its venerable sire. To elections, Wire extended Tire,

Leaving appellee’s arguments higher and drier.

Having apparently exhausted all of the words in his rhyming dictionary that went with “wire” and “tire,” Goldberg shifted to a different “theme” for the last verse:

Now to colors our focus must shift,

To Green wood and stores that are Red.

We hope this attempt at a rhyme, perhaps two,

Has not left this audience feeling too blue.

The reference to “Red” was because another important precedent was Red Food Stores v. NLRB. Or maybe he just wanted to finish up with the “colors” premise instead. He concluded that the Wire and Tire cases meant that the NLRB did not have to turn over the statements of the witnesses, who otherwise might not cooperate fully with the NLRB investigation from fear of retaliation by their employer — hence, the reference to the “bosses’ ire” and “threatening to fire.”

Or maybe (given that reference to “the funeral pyre”) he was really just making a reference to Jim Morrison and the Doors’ song, “Light My Fire.” Given some of Goldberg’s past antics, it’s hard to be sure.

No other court opinion begins quite as memorably as, “In the beginning, Zim created the concept of the Golden Guides. For the earth was dark and ignorance filled the void. And Zim said, let there be enlightenment.”