The Boston Phoenix
October 7 - 14, 1999

[Don't Quote Me]

Raging moderate

Margaret Marshall is a favorite of the liberal elite, but her background shows that she puts pragmatism and ambition ahead of ideological purity

by Dan Kennedy

If there's one thing you can say for sure about Margaret Marshall, Governor Paul Cellucci's choice for chief justice of the Supreme Judicial Court, it's that she's a darling of the liberal elite.

There's her background as an anti-apartheid activist in her native South Africa, something Cellucci brings up so often you'd think it was a prerequisite for the job. There's her marriage to New York Times columnist Anthony Lewis. There are her ties to Harvard, and the fact that she lives squarely within the 02138 zip code. And there's her embrace of solid progressive causes such as a woman's right to choose -- an embrace that now stands as one of the few remaining obstacles to her confirmation by the stubbornly retrograde Governor's Council.

It's not just liberals who think Marshall's a liberal. Conservatives do too. That became obvious with the recent controversy over her 1993 letter to Harvard Law School professor Mary Ann Glendon, written at a time when Marshall was Harvard's vice-president and general counsel. Marshall admonished Glendon for using official Harvard Law School stationery to advance her anti-abortion-rights activities. Critics in the anti-choice movement, as well as some civil libertarians, took Marshall to task for what they perceived as an outburst of political correctness. But that argument fell apart when Harvard Law School professor Laurence Tribe, a liberal who frequently speaks out on political causes, said he, too, had been admonished for his sloppy use of the Harvard Law letterhead -- and that he knew of others who had as well.

No doubt Marshall's reputation as a genuinely nice person served her in good stead: even fellow law-school professor Alan Dershowitz, who criticized Marshall for her letter to Glendon, was careful to tell the Phoenix he didn't think it should disqualify Marshall for the chief justice's position. "It doesn't, to me, reflect anything negative about her character," Dershowitz said. And Marshall was apparently able to mollify Cardinal Bernard Law, who's not exactly a soft touch, when they spoke by phone about Law's concern that she's anti-Catholic.

But those who see Marshall as a liberal on the order of Eleanor Roosevelt, or even Hillary Rodham Clinton, haven't been paying attention. Far from being an activist ideologue, Marshall is politically and legally moderate, pragmatic, and comfortable with establishment institutions and causes. She is, after all, a corporate lawyer who specializes in intellectual-property law and who rose to become president of the Boston Bar Association -- hardly the credentials of a liberal firebrand.

And she is ambitious. In 1996, when then-governor William Weld nominated her to be an associate justice of the SJC, a number of black legal scholars insisted that Marshall decline the post so that an African-American could be named. It was a ludicrous demand, but Marshall's response was instructive. Not only did she accept Weld's offer, but she produced an impressive trump card: a letter of support from Archbishop Desmond Tutu, the Nobel Peace Prize-winning South African. And Boston Globe columnist Joan Vennochi recently reported that Marshall has been campaigning for the chief justice's job for virtually the past year.

More than at any other time, though, Marshall's steely side was on display during her years as Harvard's general counsel, from 1992 to 1996. Marshall was harshly criticized for her supervision of two separate investigations into racial and ethnic discrimination on campus. On both occasions, her handpicked investigators found no discrimination. In both cases, those who said they had been discriminated against accused the investigators of looking the other way.

Marshall declined to be interviewed for this article, explaining through a spokeswoman that she would follow the custom of withholding all public comment until after the Governor's Council's confirmation vote, scheduled for October 13. And, of course, the fact that she aggressively went to bat for Harvard while she was in the university's employ hardly means that she should be rejected as chief justice. If the Governor's Council can vote 8-0 to confirm Francis Spina, who paid an imprisoned murderer to do legal work for him, then certainly it should confirm Marshall. Nevertheless, the story of the two discrimination complaints makes for an interesting case study of a judge who may well have the heart of a liberal idealist, but who can also be a shrewd, tough-minded operator.

This lesser-known side of Marshall began to emerge on Monday, in a front-page Boston Herald story by Cosmo Macero Jr., who recounted a 1993 investigation of alleged racism among Harvard University's security guards.

Over the course of two years, the Harvard Crimson reported that 11 guards on the 100-member force claimed they had been discriminated against on racial or ethnic grounds. An investigation overseen by Marshall's predecessor as general counsel, Daniel Steiner, dismissed those allegations, but Harvard president Neil Rudenstine asked that Marshall take a second look. Marshall delegated the task to two lawyers from her former law firm, Choate, Hall & Stewart, and the firm's investigator, James Ring, a retired FBI agent.

The investigation found no basis for claims of racial and ethnic bias. Yet one of the former guards who said he had been discriminated against by his co-workers, a Russian immigrant by the name of Viatcheslav Abramian, took the university to court after he was fired and won a judgment of nearly $3 million. Though that doesn't prove that the conclusions of Harvard's internal probe were wrong, it does show that a jury took a very different view of the same facts that were brushed aside by Marshall's investigators.

It was overly simplistic of the Herald to suggest that Marshall may have somehow been involved in wrongdoing, or to assert -- as it did in its headline -- that the Harvard investigation "could haunt" Marshall when the Governor's Council votes on her nomination. At worst, Marshall was guilty of hardball lawyering beyond the call of duty. Nevertheless, her game of hardball is pretty hard indeed.

One fact the Herald omitted, for instance, is that when Harvard's investigators sent letters to 98 guards in 1993, offering them the chance to participate in confidential interviews about the racial allegations, they were not told they had the right to have a lawyer present. Thirty-six, including Abramian, were interviewed as to whether they had experienced or observed racism on the force, and the Crimson reported that "several" later said they wished they had been accompanied by a lawyer. Marshall told the Crimson at the time that her main interest was in getting at the truth and encouraging the guards to speak freely and openly. And Harvard clearly wasn't required to tell the guards that they had a right to legal representation at the interviews. But it seems just as clear that the investigators should have reminded the guards of their rights.

Even before the so-called Ring report was released, the Crimson editorialized that Marshall's reliance on her former colleagues at Choate, Hall was "suspicious" and "a troubling conflict of interest." And when the report did appear, on July 30, 1993, it concluded that none of the 11 cases had any basis in fact -- including that of Abramian, who later succeeded in convincing a jury that he had been harassed and called "a fucking Russian," and had been wrongly fired for fighting after being attacked by another guard. The report's first sentence: "Discrimination on the basis of race, gender, or national origin does not exist within the Harvard University Guard Service."

Says John Swomley, one of Abramian's lawyers, "The report is wrong, and is designed to prevent lawsuits, basically."

The Ring report places much of the responsibility for the allegations of racism on the Crimson itself. The report criticizes the paper for repeating the same allegations over and over again, and notes that several guards, in interviews with Ring, claimed that the Crimson had published misquotes and inaccuracies.

Joe Mathews, who wrote most of the Crimson articles on the allegations and the subsequent investigation, recalls that Marshall expressed displeasure to him about the way he was covering the story -- and that she regularly invoked her anti-apartheid past and her marriage to Anthony Lewis in what he saw as an attempt both to impress and to intimidate him. "Her tack certainly was `kill the messenger,' " Mathews, now a reporter with the Baltimore Sun, told the Phoenix last week. "One thing I resented at the time was that she repeatedly mentioned to me who she was married to. I just thought it was uncool." He adds, somewhat incongruously, "Just talking to her, I liked her."

Harvard lawyer Allan Ryan defends Marshall against accusations that the Ring report was inadequate. Concerning the conflict-of-interest charge, Ryan says Marshall's use of Choate, Hall & Stewart was actually a sign of her independence. "I think it shows a legitimate desire to get the unvarnished truth without having to rely solely on Harvard's own resources," he says. As for whether the outcome of Abramian's trial suggests that the jury disagreed with the Ring report, Ryan replies, "It wouldn't be the first time or the last time that a jury took a different view of the facts than an investigator did."

Oddly, it was a ruling written by Marshall, issued after she'd joined the SJC, that has now placed Abramian's case before that court. Not long after Abramian prevailed in Middlesex Superior Court, the SJC issued an opinion changing the standard of proof in awarding punitive damages, which could lower the amount of money Abramian ultimately receives. The Herald story raised the possibility that Marshall acted deliberately to help Harvard, but Swomley refuses to go that far, noting that the case in which Marshall issued her ruling was unrelated to Abramian's. Still, Swomley says that if Marshall is confirmed as chief justice, the entire Abramian appeal may have to be assigned to another court, since not only she but the other justices -- who would technically become her subordinates -- would have to consider recusing themselves. (Legal briefs are due October 13, the day the Governor's Council is scheduled to vote on Marshall's confirmation.)

"I'm actually not out to get Margaret Marshall," says Swomley. "As far as I'm concerned, she's probably one of the lesser of the evils of many up there. But I do think that in this case she was playing the role of the company man. It was not fair what was done to my client."

The second investigation concerned Inati Ntshanga, a member of the Harvard class of 1995 who is, like Marshall, a South African, but who, unlike Marshall, is black.

According to Harvey Silverglate and Alan Charles Kors's book The Shadow University: The Betrayal of Liberty on America's Campuses (Free Press, 1998), Ntshanga was arrested by four Harvard cops during Christmas break in 1992 while making some extra money picking up dirty linen in a dorm basement. When Ntshanga was unable to produce his student ID, one of the cops infuriated him by asking if he had "a welfare card." Strangely, none of the cops recognized Ntshanga even though he had another part-time job at the Harvard police station, dispatching shuttle vehicles. Not even an officer with whom Ntshanga had allegedly argued a month earlier claimed to know who he was. Thus, Ntshanga was charged with trespassing, breaking and entering, and possession of burglary tools (the keys to the dorm).

Since Ntshanga was, in fact, a Harvard student, the charges were quickly dropped. At that point, Silverglate, a noted civil-liberties lawyer and a Phoenix contributor, complained to Marshall; she, in turn, assigned Allan Ryan to investigate. Ten months later Ryan cleared the officers of wrongdoing, finding that none of them, not even the cop with whom Ntshanga said he had argued, knew that Ntshanga was a Harvard student, and that asking for a welfare card "is standard procedure when a person says he has no identification." According to Silverglate's account, Ryan reached this conclusion despite refusing to interview two witnesses who had seen Ntshanga and the officer arguing just one month earlier.

Silverglate complained to Marshall about the "whitewash" and urged her to order another investigation so that the witnesses could be interviewed. "Marshall brushed it off and urged Ntshanga to just `let go' of his grievance," Silverglate and Kors wrote. "She was attentive, gracious, and respectful to Ntshanga, agreeing even to an extraordinary personal meeting with the student, but in the end she was adamantly supportive of Ryan's investigation and conclusion." (In an interview last week, Silverglate was considerably more blunt. "They didn't talk to the witnesses, they talked to the cops," he said. "What kind of investigation was that?")

A short time later -- not coincidentally, in Silverglate and Kors's view -- Marshall's office wrapped up successful contract negotiations with the Harvard police union, "avoiding a strike as well as a continuation of the highly publicized tactical criticisms that the police were directing toward Harvard and the safety of the campus."

Ryan calls Silverglate and Kors's charges bogus, saying that he thoroughly investigated the matter and that Marshall -- recognizing the fear that Ntshanga experienced when he was roughly confronted by four uniformed white officers -- went out of her way to talk with him and to reassure him of her concern. "The conduct of the police under the circumstances was professional -- that is, it was done pretty much by the book, with no consideration of Ntshanga's race or any other factors," Ryan says. "There was nothing improper done by the police."

Counters Silverglate: "I think that what she did was bend over backwards to try to avoid a fair internal investigation that might have virtually required Harvard to take disciplinary action against one of the police officers. Harvard's institutional interests required that the union contract be finalized and agreed to, and that no dust be raised between Harvard and the police union at that particular time."

Margaret Marshall has done well by doing good. But she's also been careful not to do too much good; that, after all, could get in the way of her doing well. That's not entirely a negative. A judge, after all, has to be judicious, to weigh all sides and to refrain from getting caught up in passions and causes.

As Jules Browde, a South African judge and long-time human-rights activist, told the Boston Globe's Kevin Cullen in 1996, "Margie is and always has been a pragmatist. She is a woman of principle, but is not and never was an ideologue. There were some people here who didn't think she was left-leaning enough, that she was too willing to compromise. But I would say her qualities are precisely what would make her a good judge."

It should go without saying that Governor Cellucci could have done far worse than to pick Margaret Marshall. He's been criticized within his own party for choosing a pro-choice, anti-death-penalty favorite of the Brattle Street salon crowd. If she fails to be confirmed, it will be because of her vigorous support for abortion rights -- hardly a radical position in 1999. And if she succeeds, she will not only be the first woman chief justice of the venerable SJC, she will also stand out as an intelligent, humane jurist with a considerably more impressive personal background than most. This, after all, is a woman who when she was barely out of her teens told John Vorster, then the prime minister of South Africa, that his racist apartheid policy was wrong.

But the truth about Marshall is that she is a moderate, cautious establishment lawyer. That doesn't make her a bad person, or a bad judge. But neither does it make her the avatar of liberal hopes that her media image would suggest.

Dan Kennedy can be reached at dkennedy[a]

Dan Kennedy's work can be accessed from his Web site:

Dan Kennedy can be reached at dkennedy[a]

Articles from July 24, 1997 & before can be accessed here

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