IN THE ARENA: THEODORE ROOSEVELT AND THE · PDF fileIN THE ARENA: THEODORE ROOSEVELT AND THE LAW . TALMAGE BOSTON, ... and In the last 3 years, ... June 23–24 in San Antonio,

IN THE ARENA: THEODORE ROOSEVELT AND THE LAW

TALMAGE BOSTON, Shareholder Winstead PC

1201 Elm Street 5400 Renaissance Tower

Dallas, Texas 75270 (214) 745-5462 (Direct) [email protected]

State Bar of Texas 28TH ANNUAL LITIGATION UPDATE INSTITUTE

January 19-20, 2012 Dallas

CHAPTER 21

mailto:[email protected]

Talmage Boston is a shareholder in the Dallas office of Winstead PC. He is a past Director of the SBOT, and has served as Chairman of the SBOT's Litigation Section, its Council of Chairs, and its Annual Meeting Committee. He has been the recipient of the SBOT's Presidential Citation every year from 2005-2011. Talmage practices in the area of commercial litigation, and is certified (and has been recertified many times) in both Civil Trial Law and Civil Appellate Law by the Texas Board of Legal Specialization. He currently serves on the editorial board of the Texas Bar Journal, and In the last 3 years, has written 3 featured articles in the Texas Bar Journal on Abraham Lincoln, Atticus Finch, and Theodore Roosevelt. His book "Raising the Bar; The Crucial Role of the Lawyer in Society" will be published by TexasBarBooks in February 2012.

In the Arena: Theodore Roosevelt and the Law Chapter 21

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TABLE OF CONTENTS

INSPIRATION .................................................................................................................................................................................1 ROOSEVELT AND THE LAW .......................................................................................................................................................1 BULL MOOSE .................................................................................................................................................................................3 UNHAPPY ENDING .......................................................................................................................................................................5 LIFE LESSONS FOR LAWYERS ..................................................................................................................................................6 POWERPOINT PRESENTATION ...................................................................................................................................................9

508 Texas Bar Journal • June 2011 www.texasbar.com

THEODORE ROOSEVELT AND THE LAWith the publication of the final volume of Edmund Morris’ trilogyon the life of Theodore Roosevelt, we now have a complete assess-ment of our 26th president’s strengths and weaknesses. Examining

the life of this non-lawyer, who spent his life operating in and around thelaw, provides insights and lessons for attorneys of every generation.

W

BY TALMAGE BOSTON

IN THE ARENA

President Theodore Roosevelt, 1903.Library of Congress, Prints and Photographs Division

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a.m. breakfast.” When he campaigned for president, he delivered30 whistle-stop speeches a day, keeping his energy up by shadow-boxing in the caboose. Roosevelt’s exuberance extended to his interactions with the

law. Although never licensed as a lawyer, Roosevelt spent his lifein the arena of the law.

Law StudentAfter graduating from Harvard College, Roosevelt attended

Columbia Law School, where he was conspicuous for frequentlyinterrupting professors. Roosevelt quickly concluded that lawyersand judges preferred legalese to his notion of justice and quit lawschool after a single year. Auchincloss notes that Roosevelt wasdeeply offended by the doctrine of caveat emptor. Morris con-cludes that Roosevelt lost interest in law school because he was“impatient with logic,” intolerant of corporate lawyers’ “sharppractices,” and had no interest in the law’s arcane “intricacies.”

LawmakerRoosevelt planned to use his legal studies as a stepping-stone

to politics. After quitting Columbia, he was elected to the NewYork State Assembly at the age of 23. Roosevelt immersed him-self in legislation. To be recognized on the House floor, the 5’8”legislator would jump up and stand on his chair, calling out,“Mr. Speaker! Mr. Speaker!”

ProsecutorFollowing three terms in the legislature, Roosevelt was

appointed U.S. Civil Service commissioner (1889 to 1895) andthen New York City police commissioner (1895 to 1896). Inboth positions, he acted as an investigator, enforcer of laws, andprosecutor. Unburdened by judges or evidentiary rules, hebecame known for cross examinations so forceful he often

INSPIRATIONWhen I started practicing law 33 years ago, one of my firm’s

partners displayed in his office the “Man in the Arena” excerptfrom Roosevelt’s 1910 speech at the Sorbonne:It is not the critic who counts: not the man who points outhow the strong man stumbles or where the doer of deeds couldhave done better. The credit belongs to the man who is actual-ly in the arena, whose face is marred by dust and sweat andblood, who strives valiantly, who errs and comes up short againand again, because there is no effort without error or short-coming, but who knows the great enthusiasms, the great devo-tions, who spends himself for a worthy cause; who, at the best,knows, in the end, the triumph of high achievement, and who,at the worst, if he fails, at least he fails while daring greatly, sothat his place shall never be with those cold and timid soulswho knew neither victory nor defeat.

Roosevelt’s words resonated with me during that formativetime. They inspired me to make a name for myself in the arenaof courtrooms. Yet my goal of fulfilling Roosevelt’s ideal was chal-lenged just a few years later. My mentor, Walter Spradley, offeredme the chance to leave the firm, which would have required shift-ing my practice from litigation to transactional work. When Itold Walter I wanted to stay, he said, “I understand your deci-sion, but let me tell you something. My experience in watchinglawyers over the last 40 years is that litigators are like pilots. Iknow a lot of old pilots, and I know a lot of bold pilots, but Idon’t know a lot of old, bold pilots.”Since that conversation, I have enjoyed three decades in the

litigation arena. Having seen scores of good lawyers flame out,it occurred to me that exploring Roosevelt, my inspiration as ayoung lawyer, might be useful for assessing the effects of per-forming for decades at an intense level. I knew Roosevelt haddied young, which seemed to bolster Spradley’s observationthat “TR” had not lived to be an old, bold pilot.Although there are dozens of outstanding Roosevelt biogra-

phies, I have focused on three authors: Edmund Morris, whoreceived a Pulitzer Prize for The Rise of Theodore Roosevelt (1979)and followed it with Theodore Rex (2001) and Colonel Roosevelt(2010); Louis Auchincloss, whose concise Theodore Roosevelt(2001) is written from the perspective of an author trained as alawyer; and Douglas Brinkley, a professor of history at RiceUniversity, whose The Wilderness Warrior: Theodore Roosevelt andthe Crusade for America (2009) incorporates the persuasive psy-chiatric assessments of Kay Redfield Jamison. (Morris and Brink-ley will be presenting during the State Bar of Texas AnnualMeeting, June 23–24 in San Antonio, as will another esteemedRoosevelt biographer, H.W. Brands.)

ROOSEVELT AND THE LAWEverything Roosevelt did, he did ferociously. When he wrote,

he did so at frenetic pace — whipping out 25 letters in a morn-ing and entire books in just weeks. In the Dakota Territory,according to Morris, Roosevelt earned the respect of fellow cow-boys as one who “rode a horse a hundred miles a day, stayed up allnight on watch, and was back at work after a hastily gulped 3:00

In the Arena: Theodore Roosevelt and the LawBOSTON

www.texasbar.com/tbj Vol. 74, No. 6 • Texas Bar Journal 509

Roosevelt and John Muir on Glacier Point, Yosemite Valley, Calif., 1906.Library of Congress, Prints and Photographs Division

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interrupted witnesses with new questions before they couldcomplete their responses. Morris relates Roosevelt’s self-right-eous attitude as he remembered it later in life: “Justice was jus-tice because I did it.”

Conflict StrategistAt 38, Roosevelt was named assistant secretary of the U.S.

Navy. He expanded the fleet of American warships while his supe-rior alternately suffered from illness and took long vacations.Despite aggressive posturing, Roosevelt avoided internationalaltercations during his first year, but soon helped to engineer thestart of the Spanish-American War. In situations involving poten-tial conflict, Roosevelt adhered to his famous slogan: “Speak softlyand carry a big stick.”

CombatantRoosevelt left the Navy in 1898 to fulfill his greatest ambi-

tion — to fight in a war. He led the Rough Riders up San JuanHill, the turning point in the liberation of Cuba from Spain. Thetaste for battle would remain with Roosevelt for the rest of hislife. He referred to the charge up San Juan Hill as the “greatestday of my life.”

ClientReturning home a national hero, Roosevelt ran for governor of

New York. His campaign nearly imploded over his havingsworn on his tax return that he was a resident of Washington,D.C. Roosevelt retained Wall Street lawyer Elihu Root to takewhatever steps were necessary to meet eligibility requirements.Using the law’s “intricacies,” Root’s “sharp practice” in finding afavorable interpretation of the word “resident” won the day. Roo-sevelt was elected and served two years as governor before Presi-dent William McKinley selected him as his running mate in 1900.

Litigation-Instigator and MediatorMcKinley was assassinated six months into his second term,

making Roosevelt the nation’s youngest president. On thedomestic front, realizing the value of skilled lawyers when con-fronting complicated legal issues, Roosevelt relied on PhilanderKnox as attorney general to bust trusts and destroy monopo-lies. When a coal workers’ strike in the winter of 1902 threat-ened lives, Roosevelt jumped into the arena and threatened touse the big stick of military intervention to take over the mines.The strong-armed approach worked, spurring owners and min-ers to agree to settle through binding arbitration. Roosevelt’s skill at resolving disputes was extended into the

international arena when he used the big stick of U.S. naval powerto pressure Germany into backing away from attacking Venezuela.In 1903, Roosevelt provided sufficient resources to enable Panamato gain independence from Colombia, which enabled construc-tion of the Panama Canal and U.S. control over the Canal Zone. Russia and Japan selected Roosevelt to help bring an end to

the Russo-Japanese War. After months of negotiations, Roo-sevelt succeeded, in Morris’ words, by “imposing his singularcharge upon plural power … and using his sheer force of moralpurpose, clarity of perception, mastery of detail, and benign


manipulation of men.” The president delighted in being centerstage — there were no rules, restrictions, lawyers, or judges toinhibit his pursuit of final resolution. Auchincloss acknowledges Roosevelt’s preference for operating

in a mode disconnected from law and lawyers by relating U.S.Supreme Court Justice Oliver Wendell Holmes’ response to crit-icism leveled at him by Roosevelt after Holmes had dissentedin an opinion. When Roosevelt compared the jurist’s backboneto a banana, Holmes said it didn’t bother him because heagreed with an unnamed senator’s quip: “What the boys likeabout Roosevelt is that he doesn’t give a damn about the law.”Before leaving the White House, Roosevelt received a rare

comeuppance in the law. After Joseph Pulitzer’s newspaper crit-icized him for making misrepresentations about his policy inPanama, Roosevelt directed Knox to sue Pulitzer for criminallibel. The defendant prevailed easily.

Party to LawsuitsIn the decade after Roosevelt left the White House, he was a

party to two libel cases, both of which resulted in highly publi-cized jury trials, and both of which he won. The first trial tookplace in 1913 in Michigan. George Newett, publisher of a small-town newspaper and lifelong Republican, felt betrayed whenRoosevelt left the GOP in 1912 to pursue another presidentialbid as head of the Bull Moose ticket. (Roosevelt was disillu-sioned with his handpicked successor, William Howard Taft.)Newett wrote a scathing editorial in which he claimed Roo-sevelt “lies and curses in a most disgusting way; he gets drunk,too, and all his intimates know it.” Ultimately, Newett took thewitness stand and acknowledged that his statements had beenbased on unsubstantiated hearsay; that he had no witnesses tosupport his claims; and that he had written the editorial solelyfor political purposes. Roosevelt, his name restored, received afavorable verdict of six cents. Two years later, Roosevelt came to trial as a defendant after

being sued for libel by New York Republican Party leader WilliamBarnes, who sought $50,000 in damages. The case stemmed fromRoosevelt’s statement in 1914 that Barnes was part of “New York’salliance between crooked business and crooked politics.” Aftera five-week trial, the jury deliberated almost two days beforefinding in favor of the former president. Morris vividly describesthe trial and establishes that although Roosevelt’s position wasless than airtight, his courtroom presence and personality spell-bound the jury, allowing him to prevail because he was “a defen-dant beyond the reach of ordinary justice.”

BULL MOOSEThroughout his life, when dealing with laws, lawyers, or law-

suits, Roosevelt was convinced everyone should follow whateverhe thought to be the best and most efficient course of action. InMorris’ words, Roosevelt was “congenitally unable to questionthe rightness of his own decisions.” In Roosevelt’s post-presidency years, however, his head-

strong opinions came into conflict with existing law. In 1910,following a 10-month safari in Africa and a heady tour ofEurope in which he was greeted with pomp and ceremony, Roo-

In the Arena: Theodore Roosevelt and the LawBOSTON

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child sacrifice. He had gone so far as to suggest, in his eighth[and final] annual message to Congress, that the judicial branchof government was actually a branchlet of the legislative.

Despite criticism from friends Henry Cabot Lodge and ElihuRoot, Roosevelt continued with his crusade against American


sevelt returned to the United States andbegan advocating for what he calledthe “New Nationalism,” the primaryobjective of which was to eliminate bigbusiness’ control over politics. Successwould require massive federal regula-tion that would conflict with existingstatutes and common law propertyrights. For Roosevelt, the answer wassimple — repeal the statutes andchange the common law to favor therights of individuals over the rights ofcorporations. Before a crowd of 30,000 in Kansas

in 1910, Roosevelt proclaimed, “If wedo not have the right kind of law andthe right kind of administration of thelaw, we cannot go forward as a nation.… Our public men must be genuinelyprogressive.” In one paragraph, Morrissuccinctly addresses Roosevelt’s chal-lenge to the American legal system:In no way did Roosevelt seem moreradically threatening than in hismoralistic attitude toward justice. Ifconstructionists could believe theirears and eyes, he proposed to sub-ject the Constitution itself to moralreview. “When I see you,” [long-time friend] Henry Cabot Lodgewrote on 5 September, “I shall wantto have a full talk in regard to thismatter of court decisions, aboutwhich I admit I am very conserva-tive. … The courts are charged withthe duty of saying what the law is,not what it ought to be, and I thinkto encourage resistance to the deci-sions of the courts tends to lead to adisregard of law.”

Roosevelt followed this speech withothers, all critical of the existing legalframework. Morris suggests the formerpresident’s perspective flowed naturallyfrom his lifetime attitude toward the law:Shadows over substance, wordsrather than deeds, precedents ham-pering change, technical injustice pre-cluding practical justice: Roosevelthad been attacking statutory pedantry since his days as a lawstudent at Columbia University. … As President he insistedthat courts, no less than churches, were places where plainmorals had to be expounded. Judges should no more sanc-tion an abusive policy, in the name of the Fourteenth Amend-ment, than priests should cite the Old Testament in favor of

In the Arena: Thedore Roosevelt and the LawBOSTON

Roosevelt and U.S. Forest Service Chief Gifford Pinchot on the deck of the Mississippi, 1907.Library of Congress, Prints and Photographs Division

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jurisprudence. He wrote an article for The Outlook calling forpopular referendums to recall and remove from precedent judicialdecisions. Roosevelt also began urging that voters be given theright to vote federal and state judges off the bench. Rooseveltexpounded on his philosophy in a speech to the Ohio constitu-tional convention in 1912: I do not believe in adopting the recall save as a last resort. …But either the recall will have to be adopted or else it will haveto be made much easier than it now is to get rid, not mere-ly of a bad judge, but of a judge who, however virtuous, hasgrown so out of touch with social needs and facts that he isunfit longer to render good service on the bench. It is non-sense to say that impeachment meets the difficulty. …When a judge decides a constitutional question, when hedecides what the people as a whole can and cannot do, thepeople should have the right to recall that decision if theythink that it is wrong. We should hold the judiciary in allrespect, but it is both absurd and degrading to make a fetishof a judge or of any one else.

When President Taft, a constitutional law scholar who wouldlater become chief justice of the U.S. Supreme Court, learnedof the speech, he pulled no punches:One who so lightly regards constitutional principles, and espe-cially the independence of the judiciary, one who is natural-ly so impatient of legal restraints, and due legal procedure, andwho has so misunderstood what liberty regulated by law is,could not be safely endorsed with successive [sic] presidentialterms. I say this sorrowfully, but I say it with the full convic-tion of the truth.

Auchincloss identifies this period as a turning point in Roo-sevelt’s life. The former president became increasingly vindic-tive and intolerant of opposition. He lost his bearings andentered a state of disequilibrium, increasingly seeing himself asthe messianic messenger of a semi-religious movement, and aperson at war with law, lawyers, the rule of law, and the Amer-ican legal system.Roosevelt’s longtime friend and legal adviser, Elihu Root,

joined Taft in mourning his former boss’ loss of emotional andintellectual balance. Auchincloss quotes Root’s letter to Roo-sevelt’s Harvard classmate, former Secretary of State RobertBacon, to demonstrate his extreme grief over the former presi-dent’s demise into the dark side:Theodore has gone off on a perfectly wild program, most ofwhich he does not really believe in, although at this momenthe thinks he does. … Of course, Lodge, George Meyer, Stin-son and myself, who cannot possibly go with Roosevelt in hisdeparture, have been feeling very gloomy over the situation.… I wish to fall upon your neck and weep. I wish to curseand swear and say things which I would not have repeated forthe world.

As Roosevelt left friendships behind and commenced hiscampaign as the Bull Moose presidential candidate, his speechesattacking the effectiveness of the American legal system became

more radical. Roosevelt advised the public that earlier attemptsto control the power of large corporations by means of antitrustlawsuits had been unsuccessful, and past “efforts at prohibitingall combinations had substantially failed. The way out lies, notin attempting to prevent such combinations, but in completelycontrolling them in the interest of the public welfare.”

UNHAPPY ENDINGRoosevelt’s alarming speeches during his presidential campaign

of 1912 comport with Auchincloss’ assessment of mental dete-rioration: “That is something always to keep in mind in any eval-uation of Roosevelt: his reason was constantly at work, howeverunperceived, to balance the wildness of his words. At least untilthe last few years of his life.” Roosevelt’s downward spiral manifested itself in other ways.

Morris mentions the following:• Roosevelt stuffed himself three times a day with hugemeals (breakfast alone usually consisted of eating 12 friedeggs and drinking a gallon of coffee) and gained consid-erable weight;

• After being shot in the chest by an assassin in October1912, he insisted on giving a speech (lasting 80 minutes)while blood flowed through his shirt and the right sideof his body turned black;

• Overweight and out of shape, TR took an extended tripto South America in 1914, where he confronted pira-nhas, anacondas, blood-sucking bats, and bloodthirstypium flies before contracting malaria, from which henever fully recovered;

• He repeatedly and publicly called President WoodrowWilson a “coward” for his delay in injecting Americanmilitary forces into the battlefront of World War I;

• When Wilson finally committed the United States towar, Roosevelt, though sickly, tired, and old beyond hisyears, begged the president to allow him to organize anew regiment of Rough Riders to go to the front;

• When Wilson refused Roosevelt’s offer to fight, Roo-sevelt pulled all his political and military strings in orderto get his four sons to the front lines of battle, where twowere seriously wounded and the youngest, Quentin, waskilled; and

• On the day he learned of Quentin’s death, Rooseveltinsisted on fulfilling a commitment to give a speech tothe New York State Republican Convention.

After first indentifying his subject’s visible turn for the worsein 1912, Auchincloss gives his perspective on Roosevelt’senhanced demise, as demonstrated by his obsession with hav-ing himself and his sons join the war effort in 1917: His violent efforts as an ill and elderly man to get to thetrenches in World War I and his posting of his sons to battleall seem to stem from a barely rational compulsion. It is onething for a father to salute his sons as they march off to fightfor the right; it seems to me quite another to appeal, as hedid, using all of his immense influence and prestige, to mili-tary authorities to speed them to the front.



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On Christmas Eve, 1918, knowing his days were numbered,Roosevelt told his sister Corinne that he had “kept the promisethat I made to myself when I was twenty one — that I wouldwork myself up to the hilt until I was sixty, and I have done it.”Thirteen days later, Roosevelt died. His death certificate statedthe cause of his death was “an embolism of the lung, with mul-tiple arthritis as a contributing factor.” Morris suggests that whatreally killed him was a broken heart caused by six months ofgrieving over Quentin.

LIFE LESSONS FOR LAWYERSWhat can lawyers learn from Roosevelt’s life?

Although life in the arena can lead to achieve-ment, drama, and exhilaration, it can becomeso intoxicating that one loses one’s bearings,and so exhausting that one self-destructs men-tally and physically. It’s why bold pilots don’tlive to be old pilots. Roosevelt led a remarkable life in the arena

— scholar, cowboy, naturalist, hero, president,and international mediator. Arguably, Roo-sevelt achieved more good things for the country than any otherAmerican president. Historians consistently rank him amongthe nation’s greatest presidents. Yet after leaving the Oval Office, the glory Roosevelt had accu-

mulated went to his head. His egotistical comment upon leavingthe White House became a self-fulfilling prophecy, “No man inAmerican public life has ever reached the crest of the wave as Iappear to have done without the waves breaking and engulfingthem.” With each successive year, he became more and more outof control. Inevitably, the waves broke and engulfed him. Auch-incloss cites an ominous warning from Columbia UniversityPresident Nicholas Murray Butler: “You will find it harder to bean ex-president than a president.”Brinkley has endorsed Dr. Kay Redfield Jamison’s psychi-

atric assessment of Roosevelt in her book Exuberance: The Pas-sion for Life (2004). Jamison presents Roosevelt as the posterchild for both the bright and the dark sides of an exuberantpersonality. Yes, his tireless passion for life in the arena madehim “the most vital man on the continent,” but “exuberancewhen indiscriminately apportioned is anarchical” and “mania isexuberance gone amok.”In The Wilderness Warrior, Brinkley does a superb job of

summarizing Jamison’s assessment of Roosevelt’s exuberance: Roosevelt is exhibit A for this condition. His set of symptoms— propulsive behavior, deep grief, chronic insomnia, and anall-around hyperactive disposition — demonstrate both themanic and the depressive phases of bipolar disorder. Toooften, Dr. Jamison argued, people mistakenly thought manicdepression meant despondence and withdrawal from humanendeavors. Usually it does. But those afflicted with exuberancego in the opposite direction, behaving as relentless humanblowtorches who are unable to turn down their own flame.

Diagnosing Roosevelt’s medical condition more than eightyyears after his death, Jamison claimed that the highs of the

exuberance phase brought many wonderful gifts; but shewarned there was also a sharp-edged downside. Living bythrowing up skyrockets — as P.T. Barnum once put it —wore one down to nothing. No sleep, for example, wasn’tgood for the heart or vital organs. Only by exhausting him-self in physical activity — like climbing Mount Katahdin orice skating on the Charles River in a winter storm — couldan exuberant manic like Roosevelt turn himself off.

Morris provides a prophetic observation from Henry James:“A wonderful little machine destined to be overstrained perhaps,but not as yet, truly, betraying the least creak. … It functionsastonishingly, and is quite exciting to see.” During Roosevelt’sWhite House years, Irving Fisher, a fitness and nutritional expert,said, “It is clear to me that the president is running his machinetoo hard. … In another decade or two … I would almost riskmy reputation as a prophet in predicting that he will find fric-tion in the machine, which will probably increase to almost thestopping point.” Roosevelt’s life in the arena can be comparedwith a fine car being steered by a mad scientist obsessed withkeeping the pedal floored. The driver may exhilarate at navigat-ing at dizzying speeds — for a while. The second lesson for lawyers is that any person, no matter

how spectacular his career, no matter how dynamic his person-ality, who loses respect for the rule of law also loses his moralcompass. Roosevelt’s disrespect for the law began with his drop-ping out of Columbia Law School. In quasi-legal positionswhere he called the shots without restrictions, Roosevelt operat-ed from the vainglorious perspective that “Justice was justicebecause I did it.” Brinkley details Roosevelt’s joy at creating jus-tice outside of courtrooms when he expanded efforts to protectwildlife: Roosevelt asked, “Is there any law that will prevent me fromdeclaring Pelican Island a Federal Bird Reservation?” Theanswer was a decided “No,” the island, after all was federalproperty. “Very well then,” Roosevelt said with marvelousquickness. “I so declare it.”

As president, Roosevelt often found himself in unpleasantcircumstances, where laws, rules, and statutes were binding andlawyers and judges were in place to make sure he obeyed them.Naturally, Roosevelt favored a judiciary that accorded with hispersonal views. Auchincloss provides perspective on Roosevelt’sattitude toward federal judges and constitutional law:



During Roosevelt’s White House years, IrvingFisher, a fitness and nutritional expert, said,“It is clear to me that the president is runninghis machine too hard. … In another decade ortwo … I would almost risk my reputation as aprophet in predicting that he will find frictionin the machine, which will probably increaseto almost the stopping point.”

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He expected any judge he appointed to do his best to carryout the law as interpreted by the party in power. … His atti-tude toward constitutional law was that of any progressivechief executive whose primary concern was to see legislationjudicially interpreted in ways to foster his social programs.… When TR observed to a friend that he always wanted agreat constitutional lawyer at his side, and the friend point-ed out that he had always had the services of WilliamHoward Taft and Elihu Root, both undisputed authoritiesin the field, he retorted, “Yes, but they don’t always agreewith me.”

Like most presidents, Roosevelt wanted federal courts torule and the Constitution to be interpreted one way — his way.Unlike most presidents, when judges saw issues differently thanhe did, Roosevelt believed they were purposefully betraying histrust. Small wonder that after leaving the White House, asjudgments and appellate opinions were rendered by variouscourts against his desires, Roosevelt attempted to persuade theAmerican electorate to vote for the repeal of those errant deci-sions and for the immediate removal from the bench of thejudges who had authored them. Fortunately, Americans reject-ed Roosevelt’s pitch for personal power over the rule of law.

Most Americans, including most lawyers, have an idealizedand romanticized view of Theodore Roosevelt as one of thefaces atop Mount Rushmore. He was an amazingly compellingand successful public figure, justifiably recognized as one ofAmerica’s heroes, whose forceful personality and dramaticachievements still captivate biographers and readers a centuryafter his death.Yet Roosevelt was more than his noteworthy achievements;

he was someone whose full story is both deeply troubling andinstructive for the legal profession. Roosevelt never embracedthe rule of law. The older he got, and the more burned out hissensibilities became, the more Roosevelt’s manic and self-right-eous personality turned dark and the less he respected the Amer-ican legal system. In the end, “the wonderful little machine”Henry James had so admired crashed and burned in infamy.

TALMAGE BOSTONis a shareholder in Winstead P.C. in Dallas. He serves on theState Bar of Texas Board of Directors and is a past chair of theState Bar Litigation Section. This article is adapted from hisupcoming book, Raising the Bar: The Crucial Role of the Lawyerin Society, to be published by TexasBarBooks.


School of Law

Oklahoma City University invites applications and nominations for the position of Dean of the School of Law.

Applications are invited from legal educators and administrators and from distinguished lawyers and jurists with experience or demonstrated interest in legal education. The position will be available July 1, 2011, but the starting date may be adjusted to accommodate prior commitments. Review of applications will begin immediately and continue until the position is filled. To ensure consideration, applications should be submitted by June 15, 2011. For more information, please visit our dean search website at www.okcu.edu/lawdeansearch.

Candidates are asked to submit a curriculum vitae, a list of at least three professional references, and a letter describing the candidate’s qualifications for the position with specific reference to the responsibilities and attributes described in the Leadership Statement available on the website. Applications should be submitted online at www.okcu.edu/lawdeansearch. Applications, nominations and inquiries will be kept strictly confidential. References will be contacted only with applicant approval. Nominations or inquiries may be sent to:

Professor Paula DalleyChair, Dean Search Committee

Oklahoma City University School of Law2501 N. Blackwelder Avenue

Oklahoma City, OK 73106405-208-5224

www.okcu.edu/[email protected]

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7


THE LAWYER:THE PERSON IN THE ARENATHE PERSON IN THE ARENA

Litigation Update Institute 2012Litigation Update Institute 2012 Litigation Section of State Bar of Texas

January 20, 2012y ,

Talmage [email protected]


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It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of

deeds could have done better. The credit belongs to the deeds cou d a e do e bette e c ed t be o gs to t eman who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there

is no effort without error or shortcoming, but who knows the great enthusiasms the great devotions whoknows the great enthusiasms, the great devotions, who

spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold

and timid souls who knew neither victory nor defeat.

--Theodore Roosevelt--


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By far the most useful and generally applicable variant y g y ppof the species, however, is the lawyer. He is the

lubricant of society’s essential machinery, making sure as far as possible that its parts mesh rather than clash.

Or, to the vary the metaphor, he is a sort of universal interpreter; making the words of one speaker intelligibleinterpreter; making the words of one speaker intelligible

to another.

--William A. Rusher--


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Steve Martini

David Baldacci

Lisa Scottoline

David Baldacci

John GrishamScott Turow

Richard North PattersonThe Lawyer as Novelist


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Ken Starr

Bill PowersThe Lawyeras HigherEducation

Mark Yudof

Leader


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James Baker Hillary Clinton

Warren Christopher

The LawyerJames Baker Hillary ClintonThe Lawyeras

Secretary of State


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Mayor Bill White

Mayor Phil Hardberger

Ron KirkMayor Bill White

The Lawyeras

Big City Mayors


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Trevor Rees-JonesCharles Munger

Lloyd Blankfein

The LawyerThe Lawyeras

Business Leader


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David Stern

Paul Tagliabue

Bowie Kuhn

The Lawyeras

Sports Leader


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Jeffrey Toobin Roger CossackJames StewartJeffrey Toobin g

The Lawyeras

Charlie Rose

asMedia Commentator

Nancy Grace


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Kay Bailey Hutchison John Cornyn

The Lawyer as U.S. Senator from Texas


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William Sessions Pete Geren Harriet Miers

The Lawyeras

Barbara Jordan

asU.S. Government Leader


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Tips for dealing withTips for dealing with the stress of being the

person in the arena: pthe lawyer


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1. When you have success, d ’t l t it t h ddon’t let it go to your head.

“A lawyer needs ego. It is one’s armor. A person’s ego gets things done . . . if kept under control.”

Leon Jaworski


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Bill ClintonRichard Nixon


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John Edwards Eliot Spitzer

Richard “Dickie” Scruggs


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2. Work hard; never coast -develop your consequential talents -

“For a lawyer to have a successful career, he better find a good fit between something he’s good at (so he can make

t ) d thi h j d ipartner) and something he enjoys doing (so he can go home content at night). When lawyers fail to find an intersection of skill and interest, they leave the , ypractice of law burned out or bored.”

--James A. Baker, III--


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3. Keep your inbox full –

if t ith bill bl k d iif not with billable work during slow times, then engage in something productive that uses your skillsyour skills –

as a speaker, a writer, an advocate, or anything else that uses youror anything else that uses your talents.


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4. Leave your work at the office.


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5. Study those who burned out –d t th h h d lcompared to those who had long,

productive careers:

Theodore Roosevelt vTheodore Roosevelt v. Leon Jaworski and James Baker

• Belief in a higher powerg p• Vacation retreats – clear your head• Moderate exercise


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6 Hold tight to family and friends6. Hold tight to family and friends.

“If your children don’t have successful lives nothing elsesuccessful lives, nothing else matters.”

--Jackie Kennedy Onassis--


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7 Hobbies travel7. Hobbies, travel.


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8. Do things for others –Civic/Bar Contributions


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9. Keep money in perspective.p y p p

Watch your debt –We all know good lawyersWe all know good lawyers who have taken stupid risks and had to file bankruptcy.

Plan for retirement.


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10. Feel great about your partners and associates.

Mentor – Encourage

“Question: How can you tell when aQuestion: How can you tell when a person is in need of encouragement? Answer: He’s breathing.”

--Truett Cathy--Founder, Chick-fil-A Restaurants


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“The life of the law has not been logic; g ;it has been experience….It is required of a person to share the passion and action of his time, at peril of being judged not to have lived.”

--Oliver Wendell Holmes, Jr.--(1841 – 1935)


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Documents

IN THE ARENA: THEODORE ROOSEVELT AND THE · PDF fileIN THE ARENA: THEODORE ROOSEVELT AND THE LAW . TALMAGE BOSTON, ... and In the last 3 years, ... June 23–24 in San Antonio,