An Old, Liberal, Activist Judge. Iowans Lose A Legend

Liberals have had a bad summer. One of the Democratic Party’s rising stars, Beau Biden, suddenly passed away. Jimmy Carter has brain cancer. Hillary’s email problem drags on, while Bernie cannot escape Black Lives Matter protesters. Jon Stewart retired and Donald Trump may be the next president. Planned Parenthood is under attack, and once-stalwart Democrats have embraced Ted Cruz’s position on diplomacy with Iran. Not good. And this week the progressive cause in Iowa suffered a similar blow, with the passing of Senior Federal Judge Donald E. O’Brien.

Many younger politicos may not know Judge O’Brien. It has been a long time since he was involved in politics. (He spent the last 37 years as a non-partisan Federal Judge.) But, as one attorney said in the Sioux City Journal this week, “every Democrat in Western Iowa owes a huge debt to Don O’Brien.”

I’m not going to pretend to know Judge O’Brien well. I met him a handful of times over the last three years, while my brother worked as his law clerk. But, in our few interactions, including a meeting with President Clinton and attending George McGovern’s funeral, it was clear to me that Judge O’Brien is a hero of the Democratic Party.

A picture of Judge O’Brien with JFK

As a lifelong civil servant, Judge O’Brien’s resume is a matter of public record. He was a war hero, completing 30 bombing runs over Germany and winning the Distinguished Flying Cross. After completing law school, he moved back to Sioux City, where he served as a city attorney, county attorney, and municipal judge. Then, long before Kim Weaver or Jim Mower, he fought the good fight, running for congress twice in what was then Iowa’s 8^th Congressional District, the conservative northwest corner of the state.

In his later campaign, he appeared on the stump with a young Senator from Massachusetts, John Kennedy. The two became friends and when Kennedy was elected President, he appointed Judge O’Brien to be the U.S. Attorney for the Northern District of Iowa. (A position to which he was reappointed by President Johnson.) After leaving the U.S. Attorney’s Office, Judge O’Brien worked as a political organizer. He helped every major Democratic presidential candidate over the next few years, serving as a state or regional organizer for Hubert Humphrey, Jimmy Carter and Bobby Kennedy. In fact, he was one of the very last people to talk to Bobby Kennedy, phoning RFK to tell him about his victory in the South Dakota primary minutes before RFK walked through the kitchen of the Ambassador Hotel.

In 1978, President Carter nominated Judge O’Brien for his seat on the bench and liberal icon George McGovern, along with Sen. Abourezk of SD and Sen. John Culver of Iowa (Chet’s Dad), actively supported the nomination. In a feat unheard of today, Judge O’Brien’s nomination was considered by the judicial committee in the morning, and he was approved by the Senate in the afternoon.

An Original RFK Poster Belonging to Judge O’Brien

Judge O’Brien was close friends with Sen. McGovern, having worked on his presidential campaign. In his role as a regional coordinator for McGovern, he supervised two young Yale Law School students by the names of Hillary Rodham and Bill Clinton. Judge O’Brien stayed friends with the young couple as they started their own political careers. In 1993, President Clinton appeared via phone at a ceremony honoring Judge O’Brien. Just three years ago, standing on the runway at the Sioux City airport, President Clinton pointed at Judge O’Brien and told my brother and I that, “I learned everything I know about campaigning from this guy, take care of him.” Upon the news of Judge O’Brien’s death President Clinton tweeted, “[s]ad to hear of the passing of Judge Don O’Brien of Sioux City, IA. A good man and a great friend to Hillary and me for more than 40 years.”

That idea that Judge O’Brien was a good man is not much disputed. Congressman Berkley Bedell, the only Democrat to ever be elected to Congress from Northwest Iowa, told me at the Wing Ding that “Don O’Brien is the best man I know.”

So what made Judge O’Brien so great? Well, anyone who knew Judge O’Brien can tell you that his driving principle was that “it’s nice to be important, but it is more important to be nice.” Judge O’Brien valued fairness, equality, and compassion above all other virtues, and from his various positions of power, was able to protect those who were not able to protect themselves. Judge Mark W. Bennett, himself a noted civil rights attorney before becoming a crusading Federal Judge, said “[Judge O’Brien] was exceptionally compassionate and deeply concerned about the less fortunate in life and folks who had no lobbyists or voice, like prison inmates, the mentally ill, the poor and indigent… He was in every sense their guardian of liberty and justice.”

Berkley Bedell and me at the Wing Ding last week, after having a discussion about his good friend, Judge O’Brien

Judge O’Brien’s judicial accomplishments were all consistently progressive. Our younger readers probably don’t know that once upon a time, Iowa girls were forced to play a different kind of basketball called six-on-six, because it was ‘easier’ than regular basketball. Judge O’Brien allowed a case go to forward when a group of high school girls sued saying six-on-six basketball violated their rights because they couldn’t get college scholarships. Once Judge O’Brien allowed the case to proceed, the state quickly settled and the Iowa girls got to play regular basketball. When ministers tried to force prayer at public school graduations, Judge O’Brien, who was devotedly religious, said no. When the public was gripped by AIDs hysteria in the 1980’s and Council Bluffs tried to prohibit a little girl from attending school because she had herpes, Judge O’Brien said no. As hard as it is to believe, for many years, Iowa forced juveniles into regular prisons with adult inmates. Judge O’Brien was as shocked by that as any normal person should be, and forced the State of Iowa to build juvenile detention centers.

One of the fundamental differences between liberals and conservatives is the ability to change with the times. Progressives recognize that what was once considered ‘okay’ is actually wrong. Judge O’Brien demonstrated that ability in spades. He was able to change over his long career so he could continue to provide a voice to those who had none. Judge O’Brien was born in 1923, only three years after women got the right to vote. When he worked as a county attorney in the 1950’s, police were still arresting people for being gay. By the time he was a Federal Judge, Judge O’Brien ruled that the state had to pay for a prisoner’s gender reassignment surgery.

The Court’s official obituary of Judge O’Brien noted that, “Judge O’Brien worked to ensure the rights of everyone, including prisoners and those incarcerated by the state. He worked tirelessly so that prisoners were treated humanely and fairly, and considered his work on behalf of prisoners his greatest accomplishment.” Judge O’Brien’s support of prisoners’ rights is far too voluminous to repeat here. He was an early critic of mandatory minimum laws; he opposed unnecessary cavity searches, and prohibited video cameras in bathroom stalls. Judge O’Brien would routinely vacate convictions where defendants’ rights were violated, even when it was likely that the conservative 8^th Circuit Court of Appeals would reverse him. But, as Judge O’Brien told me, his most significant achievement was fighting to ensure that mentally ill prisoners received the care they deserved under the constitution.

As Starting Line has talked about in-depth, Gov. Branstad’s white whale is funding for mental health. Whether in prisons or in mental health institutions, Gov. Branstad’s motto seems to be “the best mental health patient is an untreated mental health patent.” This was something Judge O’Brien could not tolerate and occasionally a case came along where he could do something about it. As set out by the Des Moines Register, “[Judge] O’Brien made headlines in the late 1990s for a 118-page ruling in a lawsuit criticizing conditions in a maximum-security cell house at the Iowa State Penitentiary. The ruling detailed conditions in which mentally-ill inmates would cover their cell walls in feces, and led to an agreement by the state to build a new 200-bed mental health facility to house these difficult inmates.” In response “Branstad… blast[ed] O’Brien as a “liberal, activist federal judge who was too worried about inmate rights.”

I’m sure Gov. Branstad meant that as an insult. I’m sure he genuinely believes that worrying too much about someone’s rights is a bad thing. But I can’t imagine that Judge O’Brien took it as an insult. I’m guessing he wore Gov. Branstad’s taunt as a badge of honor. And in doing so, he should be an inspiration to us all. Judge O’Brien was a man who very literally started his adult life fighting for our freedom against Nazis. Every job he ever had focused on helping and protecting regular citizens. The Democratic politicians of the modern era, from John Kennedy to Hillary Clinton, were all touched and shaped by Judge O’Brien. He was a member of the Greatest Generation and without a doubt a hall of fame Iowa Democrat. It’s appropriate that we take a few minutes to remember him, but it is far more important that we learn from his example.

by Jason Winter
Posted 8/22/15