Seeking Lawyers Who Get the Dirt Out

By Jacob A.C. Remes, an Assistant Professor of Public Affairs and History at SUNY Empire State College. Mr. Remes is also David Carliner’s grandson.

One should never mind being called an agitator, David Carliner liked to say. In a washing machine, it’s the agitator that gets the dirt out.  By the time Carliner – the namesake of ACS’s $10,000 public interest law prize – was 25, he had agitated himself into jail (for protesting in front of the German embassy when he was 16), onto police watch lists (for attending a party with interracial dancing), out of college (for organizing a high school protest), out of an apartment (for talking politics with the African-American maid), out of law school (after he was arrested again for passing out handbills), and onto a secret list of American citizens to be detained in camps “in case of emergency” (for the total of all these political activities).

For all his bravery as a student activist – he traveled to every county in Virginia organizing against militarism and white supremacy, which put him at considerable risk of physical danger – it was later, as a lawyer, when Carliner really started getting the dirt out. In the 1950s, he became one of the country’s first immigration lawyers, quickly realizing that he could use his practice not only to represent immigrant workers and dissidents, but also in his battles to liberalize American society.

Perhaps his most famous case began in 1952, when a Chinese seaman Ham Say Naim married a white woman named Ruby and applied for U.S. citizenship. Two years later, while his naturalization was still pending, Ruby sought an annulment, arguing that Virginia’s antimiscegenation law meant their marriage was invalid.  Carliner took the case to the Supreme Court, daring the justices – in the year after Brown v. Board of Education – to recognize state antimiscegenation statutes as unconstitutional. Unfortunately, the court ducked the issue and allowed the case to be decided by the Virginia Supreme Court, which found that the state had the power to “regulate marriage … so that it shall not have a mongrel breed of citizens.”

As the years went on, Carliner continued using immigration law to fight broader battles. All the while, Carliner took bread and butter cases too, helping scientists, mechanics, cooks, maids, taxi drivers, husbands and wives come to and stay in the United States.

In addition to his work in private practice, Carliner built organizations to serve his causes. In 1962, he helped found the American Civil Liberties Union-National Capital Area. With the ACLU, he worked on a series of LGBT rights cases, including that of a gay federal worker who had been fired after being arrested for soliciting sex in a park. After the trial judge called homosexuality “immoral” and “abhorrent,” Carliner appealed and won a landmark decision protecting gay federal workers.

Years of working for human rights in the United States and with those seeking asylum from other countries, along with the personal history of his wife, Miriam, a refugee from Nazi Germany, made Carliner acutely aware of the importance of human rights abroad. But he also recognized the importance of local people doing local work. He cofounded and served as chair of the International Human Rights Law Group – now called GlobalRights – which supports human rights activists, especially lawyers, in other countries.

Carliner never gave up on politics outside the courtroom. He testified before Congress and wrote articles on immigration reform. As chair of the District of Columbia Home Rule Committee, he developed a creative plan to get self-governance through a Congress dominated by hostile southern Democrats. Under Carliner’s successful 1967 plan, Lyndon Johnson “reorganized” the District’s government, sending the bill to the Northern-dominated Government Affairs Committee instead of the Southern-dominated District Committee. The reorganization gave day-to-day governance of the District to an appointed mayor and city council instead of Congress.  Building on that victory, the present Home Rule Charter passed in 1974, making the council and mayor elected offices.

Each year, ACS’s David Carliner Prize honors a lawyer seven to twelve years out of law school – roughly the position Carliner was in when he first took Naim v. Naim – who works on the issues Carliner did throughout his career: civil rights, civil liberties, immigration, and international human rights. Applicants need not have been thrown out of law school or into jail for their politics. Instead, the judges look for the creativity, principle, and courage that characterized Carliner’s career: a willingness to use law as but one tool in service of a broader social goal, the creativity to know when to go around problems (as with the home rule reorganization plan) and when to provoke them (as with Naim), and the breadth of vision to see how problems are interwoven and demand systemic solutions. In short, we look for progressive and radical lawyering not just in content but in form: agitators who use the law to get the dirt out.