Remembering Judge Elbert P. Tuttle, Sr., by Charles M. Elson (From the Cornell Law Review, Volume 82)
Elbert Tuttle was a most extraordinary man. He lived not one, but really four full
lives, setting a standard of excellence in each that few, even separately, could ever match.
Distinguished lawyer, journalist, decorated military leader, and courageous jurist, he was a
"citizen" in the classical sense of the term.
Judge Tuttle was a man of tremendous accomplishments,
yet he was quiet, humble, even slightly self-effacing. Despite the tumultuous period in which he lived
and worked, Judge Tuttle always seemed to take life's challenges with a slightly wry wit and not very much
visible worry or angst. Given the gravity of what he faced, however, he must have had considerable inner
concern. He maintained an unusually demanding professional life, yet was completely devoted to his wife
Sara and his children, Elbert, Jr. and Jane. Tuttle was a truly complete person whom untold numbers
admired and respected.
Judge Tuttle was born in California in 1897, but grew up in Hawaii. He graduated
from Cornell with a bachelor's degree in 1918, then entered the Army where, among
other things, he wrote for the service newspaper, continuing a journalistic interest
that began at Cornell where he was the Editor of the Cornell Sun. After the war
ended, he wrote for the New York Evening World, before entering Cornell
Law School. He excelled as a law student, served as the Editor-in-Chief of the Cornell Law
Review, and graduated in 1923.
Judge Tuttle then began law practice in Atlanta, Georgia. Although he had no prior connection
to the southern city, he and his brother-in-law William A. Sutherland (a former Brandeis clerk)
felt that there was much opportunity in the even-then bustling regional center. They founded what
later became the nationally known law firm of Sutherland, Tuttle & Brennan (now Sutherland, Asbill,
and Brennan). Tuttle was active in numerous civic causes, but in the 1930's became known as a prominent
civil libertarian when he represented, among others, a black man (whom he had saved from a lynching
as a major in the Georgia National Guard) accused of raping a white woman and a black communist
imprisoned for passing out leaflets at the Fulton County Courthouse. The latter case ended up at the
U.S. Supreme Court where Tuttle prevailed in the now renowned case of Herndon v. Lowry.1
His most celebrated case of that era and one of the early landmark civil liberties rulings, however, was
Johnson v. Zerbst,2 which established a defendant's right to counsel in a federal
trial unless such assistance was intelligently waved.
With the U.S. entry into World War II, Tuttle, by then a lieutenant colonel in the
National Guard, declined a desk job and was deployed to the South Pacific where he commanded
a field artillery battalion. During this command Tuttle was severely wounded in
hand-to-hand combat on Ie Shima, a Pacific Island off Okinawa. He eventually retired from
military service as a brigadier general. When the war ended, Tuttle returned to his Atlanta
law practice and renewed his activity in civic affairs, becoming President of the Chamber of Commerce.
Long active in Republican politics, unusual for a leading Atlantan at the time, he was in part responsible
for delivering the southern delegations to General Eisenhower at the 1952 Republican Convention, and President
Eisenhower appointed him General Counsel of the Treasury Department. Among his close acquaintances were
most of the young Republican luminaries of the day. In 1954, at the urging of his political cohort and
friend, John Minor Wisdom, Tuttle accepted an appointment to the U.S. Court of Appeals for the Fifth Circuit.
By then almost sixty, Tuttle initially viewed the appointment as the beginning of his retirement from an active
career in the law. Fortunately, this was not to be.
Soon after his appointment, the Supreme Court handed down its ruling in Brown v. Board of Education,3,
forever changing the racial landscape of the United States. Tuttle, rather than returning to Atlanta
for a leisured judicial sinecure, instead became a vigorous champion of the civil rights movement. As both
a judge and a then chief judge of the Fifth Circuit, Tuttle, aided by his colleagues John Minor Wisdom,
John Brown, and Richard Rives, assured the effective desegregation of southern society. Despite numerous
personal attacks ane even threats of physical violence, Tuttle courageously ensured that the Supreme Court's
edict would be fully enforced by the regional federal courts, assuring the ultimate victory of racial justice
and civil rights under law in the South. Historian Jack Bass labeled him an "unlikely hero,"4 and in 1980,
President Carter awarded him the Presidential Medal of Freedom (which in Judge Tuttle's characteristically understated
way, he kept in a cabinet beneath his television set).
In 1981, he became a judge on the newly-formed U.S. Court of Appeals for the Eleventh Circuit and
continued to decide cases well into his nineties. He authored over 1400 opinions and became recognized not
only as a great civil libertarian, but as a highly-skilled legal thinker and craftsman. Judge Tuttle wrote in
a crisp, simple and precise style that was influenced both by his early career as a journalist and his military
experiences. He had a keen intellect and a spectacular memory. He could recite page references and highly
specific historical detail even into his early nineties.
It is almost impossible in the space of a law review dedication to sum up the life of a man
as multifaceted, talented and renowned as Judge Tuttle. However, three simple characterizations
immediately come to mind - courage, integrity, and professionalism. Tuttle was an
individual of great personal courage. He demonstrated tremendous physical courage throughout
his military activities and during the civil rights era, when acts of physical violence against
those supporting integration were regretfully commonplace. But, he also continuously displayed
great intellectual courage in championing various unpopular causes, both political and social.
Although he grew up in a different era than today, he nonetheless had a sense that society
as it was then structured was not as it ought to be. He had the strength to challenge convention and the
vision to create a more just culture, where equality under law was not just an empty platitude, but a reality
for all citizens.
Tuttle was also a man of tremendous personal integrity. He never wavered from his core
beliefs, even when doing so, particularly during the civil rights era, would have guaranteed
a more pleasant and uneventful career. Yet, he was never preachy or high-handed. He simply
conducted himself in a manner that he thought was right.
My favorite Tuttle characteristic, however, was his deeply held and continuously visible sense
of professionalism. Judge Tuttle did not simply speak of professionalism, he was the very embodiment
of the term. In the late 1950s, he delivered a commencement address at Emory University in which he
spelled out his concept of the professional. Since entering teaching seven years ago, I have always
ended each years class reading that speech to my students because I felt that it captured not only
the essence of good lawyering, but the meaning of real virtue. As Tuttle stated:
The professional man is in essence one who provides service. But the service
he renders is something more than that of the laborer, even the skilled laborer.
It is a service that wells up from the entire complex of his personality. True,
some specialized and highly developed techniques may be included, but their mode
of expression is given its deepest meaning by the personality of the practitioner.
In a very real sense his professional service cannot be separate from his personal being.
He has no goods to sell, no land to till. His only asset is himself. It turns out that there is
no right price for service, for what is a share of a mans worth? If he does not contain the
quality of integrity, he is worthless. If he does, he is priceless. The value is either nothing
or it is infinite.
So do not try to set a price on yourselves. Do not measure out your professional
services on an apothecaries' scale and say "Only this for so much." Do not debase yourselves
by equating your souls to what they will bring on the market. Do not be a miser, hoarding your
talents and abilities and knowledge, either among yourselves or in your dealings with your clients...
Rather be reckless and spendthrift, pouring out your talent to all whom it can be out
of service! Throw it away, waste it, and in the spending it will be increased. Do not keep a
watchful eye lest you slip and give away a little bit of what you might have sold. Do not censor
your thoughts to gain a wider audience. Like love, talent is only useful in its expenditure, and it is never
exhausted. Certain it is that man must eat; so set what price you must on your service. But never confuse
the performance, which is great, with the compensation, be it money, power, or fame, which is trivial.
...The job is there, you will see it, and your strength is such, as you graduate...
that you need not consider what the task will cost you. It is not enough that you do your duty.
The richness of life lies in the performance which is above and beyond the call of duty.
Judge Elbert Tuttle always acted above and beyond the call of duty. The richness and example
of his life truly made the world a finer place in his own time and set an example for others
that will long serve as splendid inspiration. We will miss him.