10 questions with Brian Craig

Sponsored by BYU Studies—From J. Reuben Clark to Sen. Mike Lee, members of the Church of Jesus Christ of Latter-day Saints have had a profound influence on the legal profession.

Attorney Brian Craig highlights the lives and contributions of 18 of these individuals in Latter Day Lawyers.

Welcome! Before we begin, would you tell us a little bit about yourself and introduce Latter Day Lawyers?

My name is Brian Craig and I am a lawyer in Logan, Utah. Before starting my own solo law practice, I worked as a lawyer in the legal publishing industry for Thomson-Reuters and Wolters Kluwer. I also teach online for Purdue University Global and Brigham Young University-Idaho. My next book on legal history, entitled, Stringfellow Acid Pits: The Toxic and Legal Legacy, about a toxic waste site in California, comes out in February 2020.

Latter Day Lawyers is a collection of short biographies of lawyers and judges who are members of The Church of Jesus Christ of Latter-day Saints. The book unveils how a select group of lawyers and judges of a particular religion have influenced the constitutional and legal rights of all Americans under the backdrop of landmark and intriguing cases.

How did you come up with the idea for Latter Day Lawyers?

I have always enjoyed reading history and biographies. I read Profiles in Courage by John F. Kennedy many years ago, which recounts courageous efforts by U.S. Senators. I set forth on a project to write a similar book to profile other inspiring figures.

Even though some people mock the legal profession, including many lawyers themselves, I believe the legal field remains a noble profession in a quest to promote justice and fairness. While the American legal system is not perfect, it provides for a resolution of disputes through fair, just, and non-violent means.

As Jewish Justices of the Supreme Court: From Brandeis to Kagan by David G. Dalin (Brandeis University Press, 2017) profiles U.S. Supreme Court Justices of the Jewish faith, Latter Day Lawyers shows how individuals of another religious sect and minority have impacted American legal history despite an early history of discrimination toward their religion.

As a lawyer, I wanted to explore more the intersection of law and religion. I conducted a lot a research by reading published cases and conducting personal interviews.

Who writes the Foreword and how did his participation come about?

Senator Harry Reid, the long-time U.S. Senator from Nevada, graciously agreed to write the foreword. I did not personally know Senator Reid, but I reached out and I sent an early version of my manuscript. Senator Reid encouraged me to add a chapter on Judge Roger Hunt, a federal judge in Nevada, and a chapter on J. Reuben Clark.

I am grateful for Senator Reid’s insights. I had a few phone conversations with the retired Senator. He is genuinely a nice man and different than he is sometimes portrayed by certain media outlets.

What criteria did you use for selecting individuals for the book?

I wanted a broad spectrum of lawyers and judges. First and foremost, I tried to select people who have left an impact on the American legal system.

I asked for input from some of the people I interviewed for the book, including U.S. Senator Mike Lee, President Dallin H. Oaks, former Idaho Attorney General Larry Echo Hawk, and Judge Thomas B. Griffith with the U.S. Court of Appeals for the District of Columbia Circuit. I also focused more on published cases because they are in the public domain and not subject to copyright protection.

What is the political spectrum of lawyers in the book?

The book includes profiles of both conservative lawyers, like Rex Lee, and more left-leaning individuals, such as James E. Faust. I included lawyers and judges regardless of political affiliation.

I follow the counsel given by Judge Thomas Griffith, who sits on the U.S. Court of Appeals for the D.C. Circuit and often considered the nation’s second most influential court after the U.S. Supreme Court. Judge Griffith said the following about the judges who sit on the powerful D.C. Circuit: “Although our political views differ, first and foremost, we are patriots and Americans.”

The admonition of Abraham Lincoln given in his first inaugural address rings true:

“We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection.”

At the end of the day, we are all Americans.

How many Latter-day Saint lawyers have clerked for the Supreme Court?

Five of the individuals profiled in the book clerked for the U.S. Supreme Court: Carl B. Hawkins, Mike Lee, Rex Lee, Michael Mosman, and Dallin H. Oaks.

Judge Mosman, who now sits on the U.S. Foreign Intelligence Surveillance Court or so-called spy court, described his experience working on emotional last-minute death penalty appeals clerking for Justice Lewis Powell.

Other former Supreme Court clerks not profiled in the book include Denise Posse-Blanco Lindberg, Hannah Clayson Smith, David H. Moore, Robert N. Stander, Karl M. Tilleman, and current BYU President Kevin J. Worthen.

I am not sure on the exact number, but if I had to make a guess, I would say at least a dozen.

Many people are familiar with Senator Mike Lee, but his father was also an incredibly influential figure. Give us a few highlights from the legal life of Rex Lee.

Rex Lee was an amazing advocate. Every lawyer and law student should listen to his oral arguments in the famous Chadha v. INS case where the Supreme Court invalidated the legislative veto. The Chadha case is considered one of the top five most important Supreme Court cases.

While I attended BYU when Rex Lee served as university president, I did not realize the full extent of his distinguished legal career. Everyone I talked to said that Rex Lee is the most influential lawyer who was a member of the Church—bar none.

Perhaps a full-length biography of Rex Lee will be written someday.

Rex E. Lee and Bruce C. Hafen examine a model of the J. Reuben Clark Law School Building, 1971. Credit: L. Tom Perry Special Collections, Harold B. Lee Library, Brigham Young University.

He is undoubtedly one of the most successful lawyers to ever argue cases before the U.S. Supreme Court. He had an amazing success record before the nation’s highest court. He also had a huge impact as the founding dean of the J. Reuben Clark Law School at BYU and as former solicitor general for President Ronald Reagan. Besides the Chadha case, he argued the United States v. Leon case, which now recognizes the good faith exception to the Fourth Amendment exclusionary rule.

In addition, Rex Lee left a lasting legacy with his family, including one son who serves as a Utah Supreme Court Justice (Thomas Lee) and of course, Mike Lee, who serves in the U.S. Senate. Senator Mike Lee added great insights about his father’s legal career.

Who was A. Sherman Christensen and how was he affected by the presence of Willis W. Ritter as a District Judge?

Judge A. Sherman Christensen was the first federal district judge in Utah who was a member of The Church of Jesus Christ of Latter-day Saints.

Judge Willis W. Ritter, who also served as a federal judge in Utah, treated his judicial colleague with hostility. I interviewed one of Judge Christensen’s former law clerks, Alan Brinkerhoff, who gave some candid details about Judge Ritter’s antics. Even Sandra Day O’Connor recognized Judge Ritter was a mean-spirited person, but his conduct did not warrant his removal as a judge.

Judge Christensen took an early retirement because of Judge Ritter’s conduct, but Judge Christensen later served as a judge sitting by designation in other federal appeals courts when he was appointed by Supreme Court Chief Justice Warren Burger.

Under Justice Burger’s charge, Judge Christensen also founded the American Inns of Court movement for professionalism and excellence in the legal profession. The prestigious service award given annually at the Supreme Court that now bears his name recognizes the person who best exemplifies the qualities of leadership and commitment displayed by Judge Christensen.

What impact did clerking for Chief Justice Earl Warren have on Dallin H. Oaks, and how often did Oaks agree with Warren’s decisions?

After graduating from the University of Chicago Law School, Oaks clerked for U.S. Supreme Court Chief Justice Earl Warren during the 1957–1958 Term.

In reflecting on his time clerking for the Chief Justice in a speech given to the J. Reuben Clark Law Society at the Church Conference Center in Salt Lake City, Utah, Oaks recalled: “Chief Justice Earl Warren was an unlikely mentor and boss for a conservative lawyer like me. As you know, he and others on the so-called ‘Warren Court’ are the authors of many opinions that represent and set the direction for what is now known as judicial activism. In my view this judicial activism has worked far-reaching mischief in the law.”

Dallin H. Oaks while president of BYU. Credit: Associated Students of BYU.

Oaks added, “Whether one agrees or disagrees with the outcome of these activist decisions, they are unfortunate precedents because they are matters that should be decided by elected lawmakers, not life-tenured federal judges. For this and other reasons my confidential personal year-end tally shows that I disagreed with the chief justice’s votes on 40 percent of the cases decided on the merits that year. The 60 percent in which I agreed with him were obviously more comfortable for me, especially in cases where he was writing the opinion for the Court. Many of these were very satisfying to me personally.”

The exactness by Oaks in recording and maintaining that personal tally of decisions for nearly five decades also reflects his meticulous character.

What counsel did J. Reuben Clark receive from Joseph F. Smith upon embarking for law school in New York?

While working as an educator and school administrator, J. Reuben Clark attempted to study the law on his own, but he decided he needed a formal legal education. At the time, no law school existed in Utah.

In 1903, the Clarks, including two small children, moved to New York City, where Clark entered law school at the prestigious Columbia University. Joseph Nelson provided an interest-free loan to Clark that enabled him to attend Columbia and finance his education.

Before departing for the East Coast with his wife and two daughters, Clark received counsel and official sanction to lead his family in to “Babylon” from Church President Joseph F. Smith, who set him apart on a type of mission “to be an exemplary Latter day Saint among the gentiles of the world.”

I believe that there are many ways to be a light under the world, including work in the legal profession. Clark’s greatest impact as a lawyer remains his famous Clark Memorandum interpreting the Monroe Doctrine used in American foreign policy.

J. Reuben Clark (right) being sworn in as Undersecretary of State by William McNeir, 1928. Credit: Library of Congress, Reproduction No. LC-USZ62-98312.

What are two or three stories from the book you find personally inspiring?

Here are three accounts that I found particularly moving:

Levi Stewart Udall’s Recognition of Voting Rights for Indians in Arizona

I found the case decided by Arizona Supreme Court Justice Levi Stewart Udall, recognizing the right to vote for Native Americans in Arizona, particularly inspiring.

After years of denying Indians the right to vote in Arizona, the Arizona Supreme Court departed from established precedent. In the opinion, Justice Udall wrote on the importance of the right to vote:

“In a democracy suffrage is the most basic civil right, since its exercise is the chief means whereby other rights may be safeguarded. To deny the right to vote, where one is legally entitled to do so, is to do violence to the principles of freedom and equality.”

Judge Udall, who studied the law on his own akin to Abraham Lincoln, became the patriarch of the Udall political family dynasty and set a standard for future generations, including two grandsons who became U.S. Senators.

Senator Gordon Smith recognized, “The Udalls are to the American West, and to Arizona specifically, what the Kennedys are to Massachusetts.”

Judge A. Sherman Christensen’s Decision to Show Compassion

Judge Christensen displayed fairness and compassion from the bench. When a deaf and blind immigrant, Aslaug Vaieland, appeared before the judge to take the oath to become a United States citizen, the compassionate judge first offered to waive the repeating of the oath. But Vaieland, with tears in her eyes, told the judge she wanted to repeat the oath.

Vaieland, who lost her hearing at the age of six through scarlet fever and experienced similar disabilities as Helen Keller with deafness and blindness, repeated the oath in a loud clear voice with the assistance of an interpreter using sign language and touching Vaieland’s hand.

Christensen said he purposely kept another case outside his courtroom, concerning a man who faced deportation, so the man would not have to witness the moving ceremony of new citizens taking the citizenship oath.  

Judge Milan Smith’s Decision to Resign in Protest Leads to Support from the Left

While confirmation of federal judges can sometimes involve boisterous challenges, Senator Barbara Boxer a long-time serving Democrat from California, voiced strong support for Judge Milan D. Smith, a conservative nominated by Republican President George W. Bush, to the influential U.S. Court of Appeals for the Ninth Circuit.

Boxer’s support stemmed in large part to a decision by Milan Smith 20 years earlier to resign in protest from the California Fair Employment and Housing Commission. During the summer of 1968 in his second year of law school, Smith clerked for the prestigious law firm Covington & Burling in the nation’s capital. Smith learned an important lesson as a young apprentice studying the law: if you are ever serving in a government position and find it immoral—resign in protest.

Smith resigned in protest because California’s Fair Employment and Housing Commission failed to provide adequate legal remedies to women who were the victims of sexual harassment in the workplace.

Smith related, “Twenty years later, I went into Senator Barbara Boxer’s office with my brother [Senator Gordon Smith] and my wife. She was just knocking off people right and left. Senator Boxer pulled out a copy of Smith’s resignation letter from the California Fair Employment and Housing Commission,” recalled Smith. Senator Boxer told the judicial nominee, “I wish that you were a liberal Democrat. What you showed me is fairness, compassion, integrity—just the kind of thing I would like to see in a judge.

Dallin H. Oaks anecdote

I also found one anecdote told by Judge Smith somewhat amusing. As a law student at the University of Chicago, Smith took classes from fellow Church member Dallin H. Oaks, including a course on trusts.

When Smith struggled with the difficult concept of the “throwback rule” relating to the taxation of trusts, he visited then-Professor Oaks seeking assistance.

Professor Oaks, who wrote one of the leading casebooks on trust law used in law schools, reassured his pupil and said, “I don’t understand it either, but it won’t be on the exam.”

This interview is made possible thanks to the generous sponsorship of BYU Studies.

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