The call comes: a lunch invitation from Judge David Bazelon. He picks you up in his chauffeured Mercedes, in which he sits next to the driver. He talks and gesticulates as you ride. You pull up at Milton Kronheim's liquor warehouse -- of all places -- to see walls covered with hundreds, perhaps thousands, of photographs.
Bazelon, senior judge on the Court of Appeals for the District of Columbia, is in many of the pictures: Bazelon with Lyndon Johnson, Bazelon with Justic William J. Brennan, Bazelon with the late Justice William O. Douglas; Bazelon with Kronheim; Bazelon with peopole you don't recognize because they were young then, like law clerks who have gone on to become judges or professors at Harvard.
Lunch is in the warehouse dining room. The talk is about anything, from personal lives and loves to the Congress or the latest presidential appointment. Your companion might be a Bazelon clerk, or Federal Trade Commission Chairman Mike Pertschuk, or former congressman and now Appeals Court Judge Abner Mikva, or former senator Jacob Javits, or civil libertarian Joe Rauh or an aide or ex-aide to Sen. Edward M. Kennedy, such as New York Appeals Court Judge Steve Breyer or Washington lawyer Ken Feinberg.
Or, Justice Brennan might be there.
For decades, "Mr. K's," as the warehouse backroom is called, has been a gathering place for what one luncheon guest calls "The Bazelon Network": a salon of liberalism presided over by a judge whose name has meant liberalism.
Bazelon was the logical condidate to attack Chief Justice Warren E. Burger's law-and-order speech, and he did yesterday in San Diego, Calif. Bazelon said that some of Burger's proposals translate into "Lock the bastards up" theories that "raise serious doubts about our dedication to the presumption of innocence."
"The thought of having to choose between immediate safety and sacred constitutional values is frightening," Bazelon said in the text of a speech prepared for delivery to the Western Society of Criminology.
Bazelon specifically addressed Burger's proposals, particularly one to cut off certain rights of appeal and another to institute preventive dentention, under which susupects could be jailed pending trial on grounds of "future dangerousness."
"The seift and tough route is appealing: get the attackers off the street forthwith," Bazelon said. "Put them away fast and long so that the threat they pose to our daily lives can be neutralized. . . But can we determine in advance which offenders would in fact repeat and which would not?"
Such a short-term solution, he said, would entail "grave moral and financial costs" and still allow another generation of criminals to "emerge from the hopeless subculture of our ghettos, ready to follow the model set by their fathers and brothers."
It is unusual for a lower court judge to take on the chief justice. But Burger's speech at the recent American Bar Association convention was the ultimate conservative statement on criminal justice, and Bazelon -- as his choice of luncheon guests reflects -- has been the ultimate liberal.
During the Warren Court era, in fact, it was a good idea for lawyers who wanted a Bazelon opinion upheld to mention Bazelon's name in the brief as many times as possible.
It was one of those intersections in the law where personality met lofty jurisprudence and a name -- Bazelon or Frank Johnson or Skelly Wright -- meant as much as 100 pages of legal research. It would remind the liberal majority that Bazelon did it -- and if Bazelon did it, it must be all right.
There are still such intersections, worth exploring because they reflect the direction of the law; that direction is changing now, both in style and substance. The change is slower and less explosive than the dramatic shift that has occurred in the White House and the Senate, but dramatic nonetheless.
Bazelon, 71, is still one of the few lower court judges cited by name in legal briefs at the Supreme Court. But now his is cited when the lawyer wants to the court to reverse a Bazelon opinion or a Bazelon-like opinion.
Two major cases accepted by the Supreme Court this year feature such briefs. One attacks Bazelon's concurring opinion in a decision requiring the Federal Communications Commissions to reveiw program format before renewing radio station licenses. The other challenges a Bazelon opinion rejecting textile industry efforts to soften federal job safety regulations to protect the economic interests of manufacturers.
"Of course it's done on purpose," a Washington lawyer who has written many Supreme Court briefs said of mentioning Bazelon. The judge's name is now a red flag, he said, an "alarm" that is sounded to alert justices that "Hey, it's Bazelon again. What are you going to do about it?"
A lot of people considered Bazelon an advance guard for the Warren Court years ago, with his ground-breaking opinions on behalf of the rights of defendants and mental patients.
Now he is a foil.
It may be, to some extent, a play on Bazelon's well-publicized feud with the chief justice, a feud that began when Burger served on the D.C. Court of Appeals under Bazelon, then the chief judge. The two disagreed on issues of criminal justice and, it is said, come to loathe one another.
Since Burger became chief justice, the "Bazelon Network" has become a cult of criticism of the chief justice, heightening the tension. Whether members of the network talked with authors Bob Woodward and Scott Armstong, Bazelong and his friends were prominent in the book, "The Brethren," which was scathingly critical of Burger.
he book pictured Burger as obsessively envious and openly appaled by the adulation accorded Bazelon.
But mostly, Bazelon's name is invoked today to call to mind a judicial style that is now out of style on the Supreme Court. The differences are idelogical as well as judicial.
Compare just one excerpt each from Burger's law-and-order speech Feb. 8 to the ABA and Bazelon's speech yesterday:
Burger: "We must not be misled by cliches and slogans that if we but abolish poverty, crime will also disappear. A far greater factor is the deterrent effect of swift and certain consequences."
Bazelon: "Accepting the full implications of what we know about street crime might require us to provide every family with the means to create the kind of home all human beings need. It might require us to afford the job opportunities that pose for some the only meaningful alternative to violence. It would assure all children a constructive education, a decent place to live, and proper pre- and post-natal nutrition."
The differences also are ones of bench style. Bazelon is an "activist judge," as one lawyer put it, a"crusader." Burger, despite his conservative-activist rhetoric before the Aba, is "a technician."
"Burger looks at a case to see if it fits within the confines of the enabling legislation," said a lawyer who knows the work of both men. "And if it does, he says, 'Who am I to question?'
"Bazelon looks at the social and economic consequences, the bigger pictured, from a political perspective and refuses to be trapped by the confines of the legal system."
Supporters of Bazelon say this about Burger: "He is very confining in his interpretations. He is very confining in his interpretations. He'll use any excuse he can not to deal with the bigger questions, the social implications of what he is doing" when he rules.
Supporters of Burger say this about Bazelon: "He is a political hero, in the same sense Douglas was. His opinions are result-oriented. He has his own unique rules, fashioned by himself, and applied where and how he sees fit. He feels it is his duty to plow frontiers of law and keep challenging the Supreme Court."
The most concrete illustration of the differences was the Vermont Yankee case in 1978. The case also destroyed, in the view of many lawyers, any Supreme Court pretense that personalities play no role in their work, for the opinion that emerged as the justices overruled Bazelon was, as one lawyer put it, "the most venomous opinion anyone could remember."
The Nuclear Regulatory Agency (previously the Atomic Energy Commission) had licensed the Vermont Yankee nuclear power plant over protests that the environmental impact had been insufficiently considered. Bazelon wrote the opinion agreeing with the environmentalists.
In April 1978, with Justice William Rehnquist exhorting from the bench about "judicial intervention run riot," a 7-to-0 court (Lewis F. Powell Jr. aand Harry A. Blackmun recused; Brennan and Thurgood Marshall deserted their friend) upbraided Bazelon without mentioning him by name.
He was "Monday-morning quarter backing," the opinion said. He was "engrafting" his "own notions of proper procedures upon agencies entrusted with substantive functions by Congress . . . ."
Lower courts, the justices said, should "not stray beyond the judicial province . . . to impose upon the agency" their own "notion of which procedures are best or most likely to further some vague, undefined public good."
Bazelon's reaction reflected his love of combat, the same drive that prompted him to give his speech yesterday criticizing Burger. Instead of slinking off chastened after Vermont Yankee, Bazelon went out and defended his position -- by implication criticizing the Supreme Court's approach.
That is considered unjudgelike by many. But Bazelon has said in his speeches that "learning occurs often through irritation, just as pearls grow from sand in an oyster," and he has warned against "hardening of the arteries" by judges, whom he often compares with "shamans" and "tribal witchdoctors."